KPS Specialized Co., Ltd. (Attorneys Lee Im-soo et al., Counsel for the defendant-appellant)

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

May 29, 2009

1. The defendant shall pay to the plaintiff 1,200,000 won and 200,000,000 won among them, from April 27, 2007; 50,000,000 won from July 31, 2007; 50,000,000 won from October 4, 2007 to November 12, 2008; and 5% per annum from the following day to the day of full payment; and 20% per annum from each day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

As to the Plaintiff KRW 1,200,000 and KRW 200,000 among them, the Defendant shall pay to the Plaintiff 1,200,000,000 per annum from April 27, 2007, KRW 1,000,000 per annum from July 31, 2007 to the service date of a copy of each complaint of this case, and KRW 5% per annum from each of the following to the day of full payment.

1. Facts of recognition;

The following facts are not disputed between the parties, or acknowledged by considering the overall purport of the arguments in each description of Gap evidence 1, 2-1, 3, 4, 5-1, 2, 3, 1, 2, and 7.

A. Plaintiff’s claim against Nonparty 1

(1) On March 9, 2001, the Korea Asset Management Corporation filed a lawsuit against Non-Party 2, Non-Party 1, and Non-Party 3 brought a lawsuit against the claim for the amount of the transfer money, and on March 9, 2001, the Seoul District Court rendered a ruling that “Non-Party 2, Non-Party 1, and Non-Party 3 jointly and severally pay the Korea Asset Management Corporation KRW 17,401, 363, and 368 and the delay damages therefor shall be paid to the Korea Asset Management Corporation (No. 200)

(2) On December 31, 2001, the Korea Asset Management Corporation transferred the above finalized amount claim to a limited company specializing in the asset-backed securitization, completed the procedure for notifying the assignment of claims under the Asset-Backed Securitization Act, and the limited company specializing in the asset-backed securitization transferred the above acquired amount claim to the Plaintiff again on May 2006, and completed the procedure for notifying the assignment of claims under the above Act.

(3) As of April 17, 2008, the Plaintiff’s claim against Nonparty 1 on KRW 28,545,858,154 (principal KRW 10,793,251,594 + damages for delay + KRW 17,752,606,560).

B. Establishment of a mortgage on land owned by Nonparty 1, insolvency, etc.

(1) On May 12, 1971, Nonparty 1 and Nonparty 4, 5, 6, and 7 completed the registration of ownership transfer on the land of 472,021 square meters in Seo-gu, Seo-gu, Incheon Special Metropolitan City (Seoul Metropolitan City No. 3 omitted) (hereinafter “Seoul Metropolitan City No. king-dong (Seoul Metropolitan City No. 3 omitted), and shared the said land at the ratio of 1/5 shares.

(2) On November 12, 2001, 201, the land located in king-dong (Seoul Special Metropolitan City Number 3 omitted) was divided into 237,062 square meters (hereinafter “instant land”) and 24,375 square meters of miscellaneous land in Dong-dong Special Metropolitan City, Seo-gu (Seoul Special Metropolitan City Number 1 omitted) (hereinafter “instant land”) and 37,062 square meters of miscellaneous land in Dong-dong Special Metropolitan City (Seoul Special Metropolitan City Number 4 omitted) and 210,575 square meters of miscellaneous land in Dong-dong Special Metropolitan City (hereinafter “Seoul Special Metropolitan City Number 3 omitted). The land was designated as an area subject to permission of land transaction contract in Seo-gu Special Metropolitan City Special Metropolitan City Special Metropolitan City Special Metropolitan City Land Planning and Utilization Act around 203.

(3) On January 12, 1998, Nonparty 1 completed the registration of creation of a neighboring mortgage of KRW 2.95 billion against Nonparty 1’s share in the land of king-dong (Seoul Metropolitan Government No. 2355, Seocheon-gu, Incheon District Court. The registration of establishment of a neighboring mortgage was transferred to Nonparty 1’s share out of the instant land divided from the said land, and the registration of establishment of a neighboring mortgage, which remains on the land of king-dong (Seoul Metropolitan City No. 3 omitted), was revoked on March 4, 2005 on the ground of partial waiver.

(4) Meanwhile, Nonparty 1’s active property falls short of the Plaintiff’s claim amount as approximately KRW 16,728,398,983, and Nonparty 1 is insolvent as of the date of the closing of argument in this case.

C. Sale, etc. of real estate shares by Nonparty 1

(1) Around April 27, 2007, Nonparty 1 entered into a sales contract as follows (hereinafter “instant sales contract”) with the content that the sales price shall be paid directly to the Defendant, a mortgagee, by selling the share of Nonparty 1 in the instant land at KRW 1917,200,000, among the shares of Nonparty 1 in the instant land to the head company, and the Defendant signed and sealed the said sales contract as a recipient of the price.

1. Indication of the traded real estate;

Doking-dong, Seo-gu, Incheon Metropolitan City (detailed No. 1 omitted) 237,062 square meters among miscellaneous land

Co-ownership shares equivalent to approximately 9,917.4 square meters ( approximately 3,000 square meters) among Non-Party 1’s shares 47,412.4 square meters;

2. Recipient of the price;

The nominal owner on the registry has made a provisional disposition on the non-party 1 or non-party 1, and the defendant (resident registration number: omitted) is liable for the debt, and the actual recipient of the purchase price is the defendant.

Therefore, "B" shall pay to the defendant the full amount of the purchase price to be paid to "A" (non-party 1), and "A" shall not object to "A".

4. Methods of payment;

(B) On the date of the above agreement, the buyer (B) shall pay the down payment to the Defendant in Yeongdeungpo-gu Seoul Metropolitan Government (tax No. 5 omitted) and pay the remainder to the Defendant, and upon receipt of a certificate confirming that the “A” has no effect on the right of provisional disposition against the transaction shares from the Defendant, make the payment to the Defendant.

5. Permission for land transaction and division of articles jointly owned;

Land transaction permission, transfer of ownership, division of common property shall be conducted under the responsibility of "B" and "A" shall cooperate with the request of "B".

6. Current status of land and disposal of ground obstacles;

The 9,916.4 square meters (al.e., approximately 3,000 square meters) of land in the sale of the goods shall be transferred according to the current status.

Since the purchase price is calculated by taking into account obstacles (waste, circular aggregate and other obstacles) on the ground of the subject matter, "B" shall, under the responsibility of "B", handle obstacles at the expense of "B" and shall not be liable for "A", and "B" shall entirely be liable for civil and criminal liability when the issue of "B" is caused by any obstacle to singing the subject matter after the sale.

7. Provision of documents for registration of transfer of ownership;

"A" shall deliver all the documents required for the registration of ownership to "B" at the same time as the balance is paid, and shall cooperate in the registration of ownership transfer.

The cancellation of the limited real right to the interested parties of the above real estate shall also be delivered simultaneously with the payment of the balance.

If the provisional disposition and the collateral security, etc. are not partially cancelled for the co-ownership, the "A" shall, with respect to the provisional disposition, be delivered to the "B" with a certificate confirming that there is no effect of the provisional disposition, and the collateral security shall be delivered to the "B" by the "B" and the "B" shall be liable for the purchase share when the purchaser divides the co-ownership share and shall be delivered to the "B".

* This Agreement is confirmed to succeed to the sales contract between the seller and the non-party 1 on April 27, 2007.

(2) According to the instant sales contract, the Defendant received KRW 200,000,000,000 from the corporate head company on April 27, 2007 via the summons order account, KRW 31.5 billion on July 31 of the same year, KRW 50,000,000 on April 50 of the same year, and KRW 1.2 billion on the aggregate.

(3) After May 15, 2007, Nonparty 1 and the Korea Land Trust Co., Ltd. entered into a real estate management trust agreement with the land trust company of 237,062 out of the instant land and with the purport that the land trust company of 237,062 shares is entrusted to the land trust company of 917.4 shares among the instant land and the company would be the ownership-holder and the preferential beneficiary (hereinafter “instant trust agreement”). The registration of transfer of the said shares was completed on May 16, 2007 by the Incheon District Court Seocheon-cheon Branch Office of the Incheon District Court No. 42526.

2. Determination

A. Whether the Defendant’s loan claims against Nonparty 1 exist

(1) The parties' assertion

With respect to the Plaintiff’s assertion that there was no claim against Nonparty 1, the Defendant asserts that, upon Nonparty 1’s loan request, the Defendant actually lent approximately KRW 2.9 billion to Nonparty 1 from around 1997 to January 1, 1998.

(2) Determination

In light of the aforementioned evidence, the following facts are established: ① the Defendant was in a dynamic relationship with Nonparty 1; ② the establishment registration of a neighboring mortgage established under the name of the Defendant on January 12, 1998 with respect to the land prior to subdivision (3 omitted); ③ the Defendant waived the right to collateral security established on the land after subdivision (3 omitted) on March 3, 2005; ② the Defendant did not lend the loan amount of KRW 2.9 billion to Nonparty 1 on several occasions from 1997 to 198; ② the Defendant did not claim that the loan amount of KRW 2.9 billion was not granted only once when it borrowed the loan amount of KRW 2.9 billion to Nonparty 1; ② the Defendant did not claim that the loan amount of KRW 10 billion was not leased to Nonparty 1, and there was no objective material to acknowledge this; ② the Defendant did not claim that the loan amount was leased to Nonparty 1 or the Defendant did not claim that the loan was made in the name of Nonparty 1 and the Defendant did not claim that the loan was made in installments 1.

B. Whether Nonparty 1’s claim for return of unjust enrichment against the Defendant

(1) The parties' assertion

(A) The plaintiff's assertion

The plaintiff asserts that, upon entering into the sales contract of this case with the long-term company, the non-party 1 agreed to be paid the purchase price by the defendant, pretending to have a claim for his loan to the defendant, and accordingly, the long-term company, as the long-term company, paid the purchase price of KRW 1.2 billion to the defendant, the non-party 1 has a claim for return of unjust enrichment against the defendant, and the defendant is liable to pay the above KRW 1.2 billion to the plaintiff who exercises by subrogation the above claim against the defendant against the non-party 1 as

(B) Defendant’s assertion

The defendant asserts that the plaintiff's claim is groundless as follows.

① In the instant sales contract, a contract on the payment method of the purchase price is concluded for a third party with which the Defendant is the beneficiary. Of the instant sales contract, a part of the sales contract for Nonparty 1’s share in the instant land is in a state of flexible invalidation due to the land transaction permission zone.

② In the instant sales contract, where a part of the sales contract of Nonparty 1’s share becomes null and void in a final and conclusive manner, and there is no Defendant’s loan claim against Nonparty 1, the Defendant is in the position of a party liable for restitution according to the fact that the Defendant’s loan claim against Nonparty 1 does not exist. According to the judgment that the instant trust contract becomes null and void (Seoul Central District Court Decision 2007Gahap57140), Nonparty 1 is able to recover 917.4/2 of the instant land, which was able to recover the share of 917.4/237,062 of the instant land, and the damage arising from the instant sales contract was entirely incurred to the Defendant. In light of the purport of the instant sales contract, it is difficult to view that the Defendant would have a right to claim restitution of unjust enrichment against the Defendant, and thus, it is difficult to recognize that the Defendant would have a right to claim restitution of unjust enrichment against Nonparty 1’s Defendant.

③ In the instant sales contract, where a part of the sales contract of Nonparty 1’s share in the instant land continues to remain dynamicly null and void, and there is no Defendant’s loan claim against Nonparty 1, Nonparty 1 cannot make any claim against Nonparty 1 regarding the transfer of rights pursuant to the instant sales contract, and Nonparty 1 cannot be said to have suffered any loss, and Nonparty 1 cannot have a claim for return of unjust enrichment against the Defendant.

(2) Determination

(A) The nature of the instant sales contract

Unlike the fact that a general contract for a third party is concluded with the intention to take effect only between the parties, it is a contract with the intention to have a third party acquire rights to one of the parties to the contract directly. According to the fact of recognition, the purpose of the contract is to make the third party acquire the right to receive the purchase price directly from the third party when the contract for the sale of this case was concluded under the name of the third party, and the third party is to make the third party acquire the right to receive the purchase price. Thus, the contract on the payment method of the purchase price in the sales contract in this case is a contract for the defendant, a third party.

(B) Whether Nonparty 1’s claim for return of unjust enrichment against the Defendant

In a contract with a third party, where one of the parties to the contract (hereinafter referred to as "explic person") directly provides payment to a third party (beneficiary) who has another contractual relationship with the other party to the contract (hereinafter referred to as "explic person") according to the agreement with the other party to the contract, the explic person may not file a claim for return of unjust enrichment on the ground that he/she received payment against the third party without any legal ground. In addition, the third party having a direct claim against the explic person is the effect of the contract with the third party, and there is no cause relationship between the explic person and the third party. Even if the legal relationship between the explic person and the summary of the contract is invalidated or cancelled, the liquidation of the contractual relationship should be made between the explic person and the summary who are the party to the contract, so the explic person cannot seek return of unjust enrichment or return of unjust enrichment to the third party.

On the other hand, the legal relationship between the summary and the third party is the legal cause for the payment to the third party of the abortion, and in the event that there is a lack of effective price relationship, the summary may seek the return of the performance already performed or the transfer of the right to claim the payment from the third party by the doctrine of unjust enrichment.

As to the instant case, as to the public health unit, the contract for the payment method of the purchase price in the instant sales contract was concluded for the Defendant, who is a third party, and the Defendant expressed his/her intent to make profits to him/her, and the long-term company paid KRW 1.2 billion to the Defendant as the purchase price, and there is no obligation or debt relationship between Nonparty 1 and the Defendant, and there is no obligation or debt relationship between Nonparty 1 and the Defendant among the instant sales contract. As seen earlier, as long as the long as the long-term company was already paid to the Defendant the above KRW 1.2 billion, as long as the long as the long as the long-term company was a long-term company in the instant sales contract, the Defendant obtained profits by receiving KRW 1.2 billion from the long-term company in accordance with the instant sales contract, and Nonparty 1 suffered losses due to the failure to receive the above KRW 1.20 million, regardless of whether it became invalid or whether it was based on both parties’ legal relations between the long-term company and Nonparty 1, the above claim for return of unjust enrichment against the Defendant.

C. Scope of return of unjust enrichment

The defendant is obligated to return the above KRW 1.2 billion to the non-party 1 for unjust enrichment. Meanwhile, according to the evidence mentioned above, the defendant is found to have received the above KRW 1.2 billion from the head of the corporation, even though he was aware that he did not have any claim on his own against the non-party 1, and the defendant is obligated to return the above KRW 1.2 billion to the non-party 1 in addition to legal interest or delay damages from the date of receiving the money in bad faith pursuant to Article 7

D. Sub-committee

Therefore, the defendant is obligated to pay the plaintiff 1.2 billion won of unjust enrichment on behalf of the non-party 1 to the plaintiff from April 27, 2007, the payment date of KRW 500 million from July 31, 2007, and to pay the remaining KRW 500 million from October 4, 2007 to November 12, 2008, the delivery date of a copy of each complaint of this case from November 12, 2008, the amount of KRW 20 billion per annum under the Civil Act from the next day to the day of full payment (the plaintiff was paid KRW 1.7 billion from the corporate head on July 31, 2007, KRW 1.7 billion from the above corporate head on July 31, 2007, KRW 2.7 billion from the above 1.7 billion from the above 1.7 billion interest payment to the above 1.7 billion interest payment to the above 1.7 billion from July 2007, 2007).

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Jin-young (Presiding Judge)