Whether the payer loses his right to claim a return in accordance with Article 742 of the Civil Act where the reimbursement was made against his free will (negative)

Article 742 of the Civil Act

Supreme Court Decision 91Da17917 delivered on February 14, 1992 (Gong1992, 1019) Supreme Court Decision 95Da5222 delivered on December 20, 1996 (Gong1997Sang, 347)

AHFA loan Co., Ltd. (Law Firm LLC, Attorneys Kim Sung-sik et al., Counsel for the plaintiff-appellant)

Defendant

Seoul Central District Court Decision 2014Na62908 Decided May 15, 2015

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. The non-payment under Article 742 of the Civil Act is established only where the payer has paid it at will with the knowledge of the absence of the obligation. Even if the payer was aware of the absence of the obligation, in cases where the repayment was enforced, or it was inevitable to avoid de facto damage caused by the refusal of payment, and in cases where the repayment was made against his/her free will, such as where the right to request the return was reserved and the repayment was made, etc., the payer does not lose his/her right to request the return (see, e.g., Supreme Court Decisions 91Da17917, Feb. 14, 1992; 95Da5222, Dec. 20, 196).

2. According to the reasoning of the lower judgment and the record, ① the Defendant: (a) retired on October 31, 2013 while serving in debt collection and management as a member of the Plaintiff Company on November 1, 2010; (b) was paid KRW 10,485,879 on October 3, 2013, immediately before the Plaintiff Company retired; (c) the monthly average benefit for the three immediately preceding months was KRW 6,038,085, and the monthly average benefit for the one preceding year was KRW 2,604,940; (d) the Plaintiff Company was aware of the monthly average wage for the 14th year immediately preceding the retirement; and (e) the Plaintiff Company paid KRW 1,718,63,00 to the Defendant on November 14, 2013; and (e) the Seoul National Labor Agency’s payment of additional retirement allowance was made to the Defendant upon the Defendant’s petition; and (e) the Defendant’s payment was made on March 28, 2015, 2013013.

3. Examining the above facts in light of the legal principles of the Supreme Court precedents as seen earlier, since average wages for the three months immediately before the defendant's retirement are recognized as being considerably higher than ordinary cases due to special and remote circumstances, there is considerable room to view that the average wage should be separately calculated by any reasonable and reasonable means that can reflect the ordinary living wages true (see, e.g., Supreme Court Decision 2009Da99396, Apr. 15, 2010, etc.). Thus, it constitutes a case where the plaintiff company paid additional retirement allowances according to the amount of the average wages calculated on the basis of the defendant's average wages for the three months immediately before the defendant's retirement constitutes a case where all or part of the retirement allowances are unpaid. However, considering the circumstances leading up to the payment of additional retirement allowances to avoid criminal punishment in accordance with the corrective order of the Seoul Local Labor Agency, it is recognized that the plaintiff company was paid against the plaintiff's free will, and thus, it does not constitute a legitimate payment of the retirement allowance under Article 742 of the Civil Act.

4. Nevertheless, the court below revoked the judgment of the court of first instance and dismissed the plaintiff company's claim for restitution of unjust enrichment on the ground that even if the plaintiff company paid money to the defendant for the purpose of avoiding criminal procedure, it cannot be deemed that it constitutes a case where repayment was forced. Such decision of the court below is inconsistent with the Supreme Court's decision as to the scope of recognition of non-payment under Article 742 of the Civil Act, and there is a ground for appeal under Article 3 subparagraph 2 of the Trial of Small Claims Act that affected the judgment. The ground for appeal pointing

5. 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 Lee In-bok (Presiding Justice)