Plaintiff (Law Firm Lee & Lee, Attorneys Choi Ha-soo et al., Counsel for plaintiff)

Defendant (Law Firm KEL, Attorneys Lee Jae-hwan et al., Counsel for the defendant-appellant)

March 27, 2012

Seoul Southern District Court Decision 2010Gahap20458 Decided May 17, 2011

1. The judgment of the first instance court, including the Plaintiff’s claim expanded in the trial room, shall be modified as follows.

A. The defendant shall pay to the plaintiff 135,00,000 won and 125,000,000 won among them, 5% per annum from October 22, 2010 to May 3, 201, respectively, and 20% per annum from the next day to the day of complete payment.

B. The plaintiff's remaining claims are dismissed.

2. All costs of the lawsuit shall be borne by the defendant.

3. The above paragraph 1(a) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 135,00,000 won with 5% interest per annum from May 1, 2008 to the date of a judgment of the appellate court, and 20% interest per annum from the next day to the date of complete payment (the plaintiff extended the claim in the appellate court).

2. Purport of appeal

The part against the plaintiff falling under the order to pay under the judgment of the court of first instance shall be revoked. The defendant shall pay to the plaintiff 125 million won with 5% interest per annum from May 1, 2008 to the date of the appellate judgment and 20% interest per annum from the next day to the date of complete payment.

1. Facts of recognition;

On December 13, 2006, Nonparty 1 entered into a contract with the Defendant to evaluate and exchange the above (number omitted) worth KRW 229,440,000 with the real estate listed in the separate sheet owned by the Defendant (hereinafter “instant real estate”) around December 13, 200, on the following grounds: “The land price of KRW 1,400,00 in 1,40,000 in Yan-gun-gun, Incheon pursuant to the plan for the development of Young-do, Incheon, is to increase its ownership, and transfer its ownership to it.” On March 14, 2007, Nonparty 1 acquired the instant real estate under the name of Nonparty 2 (the mother of Nonparty 3, who is a subordinate employee of Nonparty 1) designated by Nonparty 1 (the mother of Nonparty 3, who is Nonparty 1) and acquired the instant real estate after completing the registration of ownership transfer.

On March 26, 2007, Nonparty 1 borrowed KRW 120,000,00 from Nonparty 4 under the name of Nonparty 2, and became a guarantor, and completed on March 27, 2007, the registration of establishment of a neighboring mortgage with respect to the instant real estate by Nonparty 2, the debtor, and the mortgagee Nonparty 4. As Nonparty 1 was unable to repay the said collateral security debt, Nonparty 4 applied for a voluntary auction on the instant real estate, and registered the decision of voluntary commencement of auction on September 17, 2007. Nonparty 1 also borrowed money from Nonparty 5, and completed the registration of ownership transfer on October 5, 2007, and the registration of ownership transfer on March 19, 2008.

On April 30, 2008, Nonparty 6 and his mother asked the Plaintiff to prevent the execution of the right to collateral security by repaying the claims against Nonparty 4 with respect to the right to collateral security. Accordingly, on April 30, 2008, the Plaintiff agreed with Nonparty 3 and the Defendant’s children Nonparty 9 as well as KRW 135,00,000, totaling KRW 10,000,000, which was remitted from Nonparty 6 to Nonparty 8, the wife of Nonparty 4, and the instant right to collateral security was cancelled on May 1, 2008.

On May 1, 2008, the defendant paid KRW 100 million to the non-party 5, and the non-party 2 and the non-party 3 agreed that the non-party 5 shall transfer the ownership of the real estate of this case to the defendant. On May 2, 2008, the defendant completed the registration of transfer of ownership on the ground of sale on May 1, 2008, and on June 26, 2008, the registration of the decision of voluntary commencement of sale was also cancelled.

[Evidence] Evidence Nos. 1-1, 2, 2-1, 3-1, 2-2, 4, 6, 8-2, 10-3 through 6, 14-2, 15-3 through 8, 7, 8 of the first instance court witness, 8 of the party trial, and the purport of the whole pleadings

2. Determination

A. Judgment on the primary cause of the claim

The plaintiff asserted that, upon the defendant's request on April 30, 2008, the defendant is obligated to pay to the plaintiff the amount of 135,000,000 won subrogated for the non-party 4's right to collateral security by subrogation, and damages for delay as stated in the purport of the claim from May 1, 2008.

However, it is difficult to believe that the Plaintiff paid the debt of Nonparty 2 or Nonparty 1, the principal debtor of Nonparty 4 to Nonparty 4 with the Defendant’s delegation, and there is insufficient evidence to prove otherwise. Therefore, the above assertion is without merit.

B. Determination on the first preliminary claim

The plaintiff asserted on May 1, 2008 that the defendant agreed to pay the above amount to the plaintiff, because he agreed to pay the salary level raised by the plaintiff by promoting the first priority loan on the security of the real estate of this case, the defendant is obligated to pay the above amount to the plaintiff. However, there is no evidence to acknowledge this, the above assertion is without merit

C. Judgment on the second preliminary claim

In order to establish the office management, it is required that, first of all, the office work is another person's business and there is an intention to vest in another person the actual benefit of the office work on behalf of another person, and furthermore, it is not clear that the process of the office work is disadvantageous to the principal or against his will (Supreme Court Decision 2009Da71558 Decided February 11, 2010). However, since the repayment by a third person is in itself beneficial to the debtor, unless there is any counter-proof, it should be acknowledged that the repayment is no less favorable to the debtor, and it is not contrary to his will. The repayment is a kind of office management, and the third person who has discharged the obligation has a right to demand reimbursement against the debtor in accordance with the legal principles of the office management (Supreme Court Decision 4293Da729 Decided November 9, 1961).

This legal doctrine applies equally to the repayment of an obligation of another person on behalf of a person who has a legitimate interest in the performance of an obligation. Therefore, if a third party’s performance becomes extinct and a person who has a legitimate interest in the performance of an obligation obtains profits from not paying the obligation, then the third party’s performance is no less favorable to the person who has a legitimate interest in the performance of the obligation, and it is not contrary to its intent. Therefore, the third party may exercise the right of recourse to the necessary expenses arising from the management of affairs against the person who

Meanwhile, in cases where the performance under a contract becomes a benefit of a third party as well as the other party to the contract, if the other party to the contract who performed the contract is entitled to claim a return of unjust enrichment directly against the third party, in addition to claiming a return of unjust enrichment, it would result in a violation of the basic principles of contract law by transferring the risk burden under the contract under one’s own responsibility to the third party. Moreover, it would result in a result that the party to the contract, which is the creditor, receives preferential treatment compared to the general creditors of the other party to the contract, and would prejudice the general creditor’s interest, and the third party’s right of defense against the other party to the contract, etc. In such a case, the party to the contract who performed the contract may not claim a return of unjust enrichment directly against the third party, who is the party to the contract, to whom the benefit under the contract belongs (Supreme Court Decision 2011Da48568 Decided November 10, 2011). Therefore, a person who performed the obligation upon delegation by the debtor, who is not entitled to claim a return of unjust enrichment against the debtor or a person who has a legitimate interest.

Business management differs within the scope of unjust enrichment and reimbursement of expenses, but it is common in that the benefits derived from the business performed by another person without delegation shall be repaid. Therefore, the above legal principle equally applies to business management, and a person who has repaid an obligation with delegation from an obligor can only claim reimbursement of expenses against the obligor, but cannot claim reimbursement of expenses from the business management against the obligor, but the obligor or the person who has a legitimate interest in repayment without delegation from both the obligor and the person who has a legitimate interest in repayment can claim reimbursement of expenses from the obligor or one of the persons who have a legitimate interest in repayment.

In addition, a person who is in a position to recover ownership of real estate is a person who has a legitimate interest to repay the secured debt in order to cancel the right to collateral security on the real estate.

According to the facts established above, the defendant may revoke the above exchange contract pursuant to Article 110 of the Civil Act on the ground that the above exchange contract was made by fraud, but if the non-party 4, the mortgagee, did not know that the defendant's expression of intent was based on fraud, he cannot oppose the non-party 4. Therefore, the defendant constitutes a person who has a legitimate interest in repaying the non-party 4's claim to recover ownership of the real estate in order to recover ownership of the real estate in this case. In addition, even if the plaintiff did not explicitly express his intent to pay the real estate in lieu of the defendant, it can be sufficiently recognized that the plaintiff had the intent to deal with the defendant's business even though the plaintiff did not express his intention to pay the defendant, and at the same time, in this case where the plaintiff recovered the ownership of the real estate in this case from the non-party 5, the defendant would have been able to obtain the plaintiff's claim for reimbursement equivalent to the amount of the plaintiff's repayment and the plaintiff's claim for performance against the non-party 4's debt or the defendant's debt.

Therefore, with respect to the Plaintiff KRW 135,00,000 and KRW 125,00,000 among them, the Defendant is obligated to pay damages for delay at each rate of KRW 20% per annum under the Civil Act from November 29, 2011 to May 3, 2012, which is the date following the date on which the Defendant requested payment through the delivery of a duplicate of the complaint of this case, on the record that it is an obvious date following the date on which the Defendant received a claim through the delivery of a duplicate of the application for modification of the purport of this case.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition and the remaining claims shall be dismissed as without merit. Since the judgment of the court of first instance, which has concluded a part of the claim differently, is unfair, the plaintiff's claim extended in the court of first instance and part of the plaintiff's appeal shall be accepted, and it is so decided as per Disposition.

[Attachment]

Judges Lee Do-won (Presiding Judge)