Where the principal obligation ceases to exist through the repayment by a third party, whether a third party who does not have the right of subrogation can claim a return of unjust enrichment against a joint and several surety (negative)

Where the principal obligation is extinguished by the repayment of the principal obligation by a third party, the guaranteed obligation is also extinguished due to the extinguishment of the principal obligation (in case of joint and several guarantee, the guarantor is not recognized as supplement of the guaranteed obligation because the debtor is jointly and severally liable for the performance of the obligation, and since there is no difference in the nature of the guarantee, the joint and several guarantee obligation also ceases to exist if the principal obligation is extinguished by the repayment of a third party). The third party cannot make any claim against the guarantor, such as a return of unjust enrichment, unless the subrogation by the person performing the obligation is constituted under Articles 480 through 481 of the Civil Act. In addition, the unjust enrichment is established where profits are derived from another person's property or labor, and damages are inflicted on another person. If the principal obligation is extinguished by the third party's withdrawal, it is difficult to see that the third party is able to claim the return of unjust enrichment against the joint and several surety of the third party.

Articles 480, 481, and 741 of the Civil Act

Plaintiff

Defendant (Attorney Kim Jae-ro, Counsel for defendant-appellant)

Seoul High Court Decision 95Na42432 delivered on May 1, 1996

The judgment below is reversed and the case is remanded to Seoul High Court.

The defendant's attorney's grounds of appeal are examined.

1. According to the reasoning of the judgment below, since the defendant and the non-party company entered non-party 2 corporation with non-party 6's representative director for manufacturing and selling building materials in the name of the non-party 2's representative director (hereinafter the non-party company), the non-party company received non-party 2's loans from the National Bank of Korea (hereinafter the National Bank of Korea) on May 199 and around November 30 of the same year, and the non-party 2 received 70,000,000 funds from the non-party 6 bank (hereinafter the Dongnam Bank of Korea), and the defendant jointly and severally guaranteed the above loans to the plaintiff on May 19, 193. The court below determined that the non-party 6 company's repayment of the above loans in the name of the non-party 3 company and the non-party 6 company's repayment of the above loans in the name of the above non-party 4 company's loan to the above non-party 6 company's loan and the defendant paid the above loans to the non-party 1 company 60.

2. In light of the records, the fact-finding by the court below is just and acceptable, and there is no error of law such as violation of the rules of evidence or misunderstanding of facts, such as the theory of lawsuit, and there is no reason to challenge this.

However, in the case where the principal obligation is extinguished by the repayment of the principal obligation by a third party, the guaranteed obligation is also extinguished due to the extinguishment of the principal obligation (in the case of joint guarantee, the guarantor is not recognized as supplement of the guaranteed obligation because the debtor is jointly and severally responsible for the performance of the obligation, and there is no difference in the nature of the guarantee, and thus, the guaranteed obligation also ceases to exist if the principal obligation is extinguished by the repayment of the third party). The third party cannot make any claim against the guarantor, such as a claim for the return of unjust enrichment, unless the subrogation is established by the repayment of the third party under Articles 480 through 481 of the Civil Act. Further, the unjust enrichment is generated from another person's property or labor and thereby causes damage to the other party. Accordingly, if the principal obligation is extinguished by the withdrawal of the plaintiff, it is difficult to see that the plaintiff as the principal obligor can exercise the right to demand the return of unjust enrichment against the non-party company, which is the principal obligor, and therefore, it cannot be accepted.

Nevertheless, it cannot be said that the court below's accepting the plaintiff's claim for return of unjust enrichment against the defendant on the grounds as stated in its reasoning has committed an unlawful act that affected the conclusion of the judgment by misunderstanding the legal principles as to unjust enrichment.

There is reason to point this out.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Yong-sik (Presiding Justice)