In case where the illegal cause exists between the benefits and the beneficiaries, the application standards of proviso of Article 746 of the Civil Act shall be applied.

If the illegality of the beneficiary is greater than that of the provider by comparing and comparing both the illegality of the provider and the beneficiary even if the illegal cause exists between the provider and the beneficiary, the provider may demand the return of the benefit in accordance with the proviso of Article 746 of the Civil Act.

Article 746 of the Civil Act

Plaintiff

Defendant 1 and two others

1. Defendant 1 and 2 shall pay to each of the Plaintiff an amount of KRW 70,00,000 and an amount of KRW 25% per annum from October 31, 1983 to the date of full payment.

2. The plaintiff's claim against the defendant 3 is dismissed.

3. Of the costs of lawsuit, the parts arising between the Plaintiff and Defendant 1 and Defendant 2 are assessed against the said Defendants, and the parts arising between the Plaintiff and Defendant 3 are assessed against the Plaintiff.

4. The above paragraph (1) can be provisionally executed.

Defendant 1 and 2 shall be jointly and severally paid to the Plaintiff KRW 70,000,00, and Defendant 3 shall be jointly and severally paid with Defendant 2 an amount of KRW 20,000,000 and each of the above amounts shall be paid at the rate of 25% per annum from the day following the delivery of the complaint to the day of full payment.

Costs of lawsuit shall be borne by the defendants, and provisional execution declaration

1. We examine the Plaintiff’s claim against Defendant 1 and 2. Defendant 1 and 2, in collusion with the Nonparty, knew that the Plaintiff did not have an ability or intent to obtain a new taxi transportation business license from Busan City and accessed the Plaintiff, and agreed to obtain the said license through a high-ranking person in Seoul where the said Defendants and the Nonparty et al. are well aware, and there is no dispute between the parties as to the facts that the Plaintiff received KRW 70 million from the Plaintiff on or before and after February 2, 1983 and acquired KRW 30,000,000 from the Plaintiff on or after the day of receiving KRW 30,000 from the said Plaintiff on or after February 2, 1983.

Thus, Defendant 1 and 2 are liable for compensating for KRW 70,000,00, which is the amount of damage suffered by the plaintiff by the above deceptive act, unless there is a special circumstance as a joint tortfeasor.

However, the above defendants asserted that even though the plaintiff paid 70,000,000 won to the defendants, as above, was caused by the plaintiff's request to the high-ranking level that he would obtain a new taxi transportation business license, the plaintiff also paid the above amount as a school expense for the acquisition of the above license through the high-ranking group by a non-legal method, and therefore, they did not have a duty to compensate for the above amount under Article 746 of the Civil Act.

The proviso of Article 746 of the Civil Code provides that when the illegal cause exists only to the beneficiary, the beneficiary may claim the return of the property. The "if the illegal cause exists only to the beneficiary" under the proviso of the same Article does not apply only to the beneficiary and only to the beneficiary, and even in the case where both the provider and the beneficiary are involved, if the illegality of the beneficiary is compared to that of the provider, it is reasonable to interpret that the beneficiary can claim the return of the property in case where the illegality of the beneficiary is larger than that of the provider. According to the above decision that there is no dispute between the parties, the illegal cause in this case is clear that there is both the plaintiff, the beneficiary, and the defendant 1 and 2, who are the beneficiary. However, in light of the fact that it is necessary for the plaintiff to obtain the taxi transport business license and the plaintiff's fraudulent cause was concealed from the above plaintiff, the plaintiff can claim the return of the money from the beneficiary, the plaintiff or the beneficiary, who is the above provider.

Therefore, the above defendants' above assertion cannot be accepted.

2. Next, we examine the Plaintiff’s claim against Defendant 3.

The plaintiff's attorney asserts that since the defendant 3 acquired the above amount of KRW 70,000,000 in collaboration with the defendant 1 and 2, the defendant 3 also is liable for the damages suffered by the plaintiff as joint tortfeasor. However, there is no evidence to acknowledge that the defendant 3 acquired the above amount jointly with the defendant 1 and 2, and there is no evidence to prove that the defendant 3 acquired the above amount, the above assertion by the plaintiff's attorney is groundless

3. If so, Defendant 1 and 2 are liable to pay to each of the Plaintiff damages for delay at the rate of 25% per annum from October 31, 1983 to the full payment date, which is obvious in the record that it is the next day for the delivery of the complaint. Thus, the Plaintiff’s claim against Defendant 1 and 2 against Defendant 3 is justified, and the Plaintiff’s claim against Defendant 3 is dismissed as without merit. It is so decided as per Disposition by the application of Articles 89 and 93 of the Civil Procedure Act and Article 6 of the above Special Cases Concerning the Declaration of Provisional Execution.

Judges Goeung (Presiding Judge) Haung-ho Kim Jong-hun