Performance for Illegal Claim and Exercise of Real Rights Claim

Article 746 of the Civil Act does not limit only the unjust enrichment system, but also with Article 103 of the same Act, the basic concept of the private law is as well as Article 103 of the same Act, and as a result, a person who commits an act without social validity expresses not less than the possibility of demanding recovery, regardless of the form of the unlawful act. As such, the person who provided the benefit cannot make a claim for the return of unjust enrichment to the other party because the act of cause is legally null and void, and the ownership of the provided goods still exists on his own, and thus, the claim for return based on ownership cannot be made.

Article 746 of the Civil Act

Supreme Court Decision 7Da728 delivered on September 15, 1960, 77Da728 delivered on June 28, 197

Plaintiff

Defendant’s Counsel for the defendant-appellant

Busan District Court Decision 78Na232 delivered on February 23, 1979

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The ground of appeal No. 1 by the defendant's attorney is examined.

Article 746 of the Civil Code provides that a return of the benefit shall not be claimed when the benefit was paid on the ground of an illegal cause. If the benefit arising from an illegal cause is paid in accordance with the general legal principle, the benefit arising from the illegal cause shall be deemed to have no legal cause, and thus, a claim for return of the benefit may be made. However, the acceptance of such a claim is aimed at recognizing and protecting the assertion of a person who committed an act contrary to the ideology of the law, and is contrary to the fundamental purport of the system of unjust enrichment which is excluded from the ideology of fairness, and is also contrary to the overall ideology of the law, so this provision aims to realize the legal ideology that makes Article 103 of the Civil Code that invalidates a juristic act with the content of a violation of good morals and other social order, and that it shall not protect one who committed an act without social feasibility.

Therefore, Article 746 of the Civil Act is a large amount of expression constituting the foundation of the private law along with Article 103 of the Civil Act, and this is stipulated in the Chapter of unjust enrichment on the part of the civil law. However, this is because the recovery of an act which is not socially reasonable is often asserted in the form of a claim for return of unjust enrichment. In this context, it is not merely a theory that limits only the unjust enrichment system, but also a theory that limits only the unjust enrichment system, it is based on a more fundamental ideology of the private law, and ultimately, the person who has committed an act which is not socially reasonable, expresses that he/she himself/herself claims the illegal act, and expresses his/her intention that the restoration cannot be resolved regardless of the form of

Therefore, a person who provided a benefit cannot file a claim for return on the ground of unjust enrichment with the other party because the act of the cause is null and void by law, and since the act of the cause is null and void, the ownership of the goods provided is still in his/her own possession, and thus it is not possible to file a claim for return on the basis of ownership, and therefore, it is reasonable to interpret that the ownership of the goods provided as a reflective effect belongs to the other party who received the benefit.

In this case, the court below rejected the defendant's assertion that the forest of this case was originally owned by the father of the defendant, and that the forest of this case was originally owned by the non-party of the defendant's father, and that he donated the forest of this case to the plaintiff in return for the establishment of an in-fluent relationship with the plaintiff and transferred the registration of ownership transfer. Thus, the plaintiff acquired the ownership as it is in accordance with Article 746 of the Civil Code, and that the registration of ownership transfer before the plaintiff was null and void because the above registration of illegal consideration was caused by illegal consideration. As a result, the judgment of the court below shows to the purport as above, it is just, and there is no error of law by misunderstanding the legal principles of illegal consideration such as theory, and therefore, the argument is without merit. The previous other judgment of this court (Supreme Court Decision 4293Da577 delivered on September 15, 1960; Supreme Court Decision 7Da728 delivered on June 28, 197, etc.).

We examine the second ground for appeal.

The theory of lawsuit does not appear to the effect that the judgment of the court below is criticized on the basis of the preparation of evidence and the recognition of facts which belong to the whole matters of the court below, which is the fact-finding court. Thus, even if the judgment of the court of first instance cited by the court of first instance is examined by the records, it cannot be viewed that there was an error of finding facts against the rules of evidence, such as the theory of lawsuit, in the process of documentary evidence verification, and it cannot be said that there was a

The issue is groundless.

Therefore, this appeal is without merit, and therefore dismissed. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices, except for the dissenting opinion of the Supreme Court Justice Yang Byung-ho, Jin-ho, and Kim Ha-ho as to the first ground for appeal.

The dissenting opinions of the judges of the Supreme Court are as follows.

Article 746 of the Civil Code is a provision regarding the right to claim a return of unjust enrichment as stipulated in the chapter for unjust enrichment, and the above Article of the Civil Code which limits the right to claim a return of unjust enrichment, which is the right to claim a return of unjust enrichment, has the effect of limiting the right to claim a claim in real right, which differs from the right to claim a return of unjust enrichment, to the right to claim a return

It is against our sense of justice that the provision of the Civil Code provides that the claimant's right is asserted on the ground that he/she committed an illegal act. Therefore, it is against our sense of justice. However, since the claimant merely prevents himself/herself from claiming his/her illegal act, the interpretation of the provision that the claimant can block other claims that do not have any reason to block it by law is difficult to say that there is no such a provision.

In other words, it is sufficient to claim only his own ownership in exercising the water claim, and the fact that there was a tort is no need to be a legal cause of claim. Therefore, the argument that there is an illegal cause to himself/herself can be avoided by giving benefits due to an illegal cause which the parties did not assert on any ground.

The majority opinion states that the rejection of the right to claim based on ownership belongs to the beneficiary is more than the expression forming the basis of the judicial system, but the case where the beneficiary receives the benefit due to the illegal cause is more serious than the tort of the beneficiary. In such a case, the above act is in violation of Article 103 of the Civil Code, so it is impossible for the beneficiary to acquire ownership, and it is impossible for the beneficiary to acquire the right without any legal basis due to the reflective effect of the impossibility of the beneficiary's claim for return. It cannot be said that it is consistent with the idea of fairness, and it is more difficult to see that it is more difficult to recover the beneficiary to the beneficiary and restore the beneficiary to the original state, thereby making both cannot take advantage of the benefit without any legal basis.

Justices Lee Young-pop (Presiding Justice) Ha Young-gu (Presiding Justice) Jin-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak Kim Jong-Jk-Jak