(영문) 부산고등법원 2014.3.27.선고 2012나8963 판결

[ claim] The defendant shall pay to the plaintiff 240,000,000 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment (the plaintiff shall be entitled to claim the return of the interest on the part of the court of first instance as well as the return of the agreed amount based on the written form, but the plaintiff shall be entitled to claim the return of the interest on the part of the court of first instance and the return of the agreed amount

[Purpose of appeal] Revocation of the judgment of the first instance court. The plaintiff's claim is dismissed.

Reasons

1. Basic facts

(1) Busan District Court (hereinafter referred to as the "Refusal Savings Bank") which was a management of Busan District Bank.

The president D of the Livestock Bank Group Group D, the representative director E, etc. decided to establish and operate a special purpose corporation (SPC hereinafter referred to as the "SPC") in order to conduct real estate development projects prohibited under the Mutual Savings Banks Act or to lend its business funds.

② On January 29, 2010, the management of the Busan Savings Bank borrowed KRW 7 billion from the Busan Savings Bank in the name of the Defendant, who is an employee F, and deposited the loan into the Busan Savings Bank in the name of the Defendant (Account 1*********; hereinafter referred to as the “instant deposit account”), and used it for the operation of the SPC, such as paying interest on the loan with the said money, and paid KRW 1.5 million per month in the name of the F Bank (*) in the deposit account in the name of the F Bank (*).

③ The Defendant, on February 16, 2011, transferred KRW 240,000,000,000 in the balance of the deposit account of this case, to a new agricultural bank account (1**********) by using Internet banking on February 16, 201, which was the day immediately preceding the decision, that the Financial Services Commission made a decision to suspend the business of the Busan Savings Bank due to the insolvency of the assets of the Busan Savings Bank in the above SPC operation.

④ On June 28, 2011, the Busan Savings Bank’s situation was under investigation by the Defendant and F, respectively, written statements to the effect that the Defendant would return KRW 240 million transferred as above, and F would return KRW 47 million acquired as the name of the name of the company, etc.

⑤ The Busan Savings Bank was declared bankrupt by the Busan District Court on August 16, 2012, and the Plaintiff appointed as the trustee in bankruptcy of the Busan Savings Bank on the same day taken over the instant lawsuit.

【Partial Grounds for Recognition】 Facts without dispute, Gap evidence 1, 2, Gap evidence 3-1, 2, Gap evidence 4-1, 5, Gap evidence 6-1 through 4, and the purport of the whole pleadings

2. Determination on this safety defense

On October 20, 201, the Defendant agreed to withdraw the Plaintiff’s manager and F’s business insolvency and unjust enrichment generated from the Defendant’s nominal name lending, including the cancellation of provisional seizure of wage claims and the revocation of provisional seizure of wage claims and the litigation related thereto, and accordingly, the instant lawsuit is unlawful. However, according to the Defendant’s assertion’s reorganization of evidence No. 1, the agreement between F and Busan Savings Bank’s administrator is merely pertaining to the claim for refund of KRW 47 million paid to F, Inc.’s deposit account (2***-*****) and the claim for respective money. Since the agreement between the Defendant and F and Busan Savings Bank’s administrator is irrelevant to the Defendant’s claim for refund of KRW 240 million paid on February 16, 201, the aforementioned argument by the Defendant is groundless.

3. Judgment on the merits

A. Establishment of obligation of return of unjust enrichment

According to the above facts, there was a clear agreement between the Busan Savings Bank, which is a financial institution, and the defendant to use the instant deposit account under the name of the defendant of the Busan Savings Bank, and at least between them, the parties to the instant deposit account are conducting the Busan Savings, which is not the defendant, and thus, the defendant cannot have the right to claim the return of the deposit.

However, as the Defendant, without any legal cause, transferred the money deposited in the instant deposit account using his name to his bank account, thereby gaining profit equivalent to the transfer amount, and thereby causing damage to the Busan Savings Bank, the Defendant is obligated to pay to the Plaintiff, a trustee in bankruptcy in Busan Savings Bank, the amount of KRW 240 million and the damages for delay calculated at the rate of 20% per annum from September 30, 201 to the date of full payment, as the Plaintiff seeks, from September 30, 201, the day following the delivery of the copy of the instant deposit account to the day of full payment.

B. Judgment on the defendant's defense, etc.

(1) The defendant's assertion

The savings account in this case is opened in violation of the Act on Real Name Financial Transactions and Confidentiality and the Banking Act, and the profits from the transfer of the deposit from the account in this case constitute an illegal cause, and thus the Plaintiff, the payer, cannot seek restitution of unjust enrichment.

Even if Q Q does not, since the Plaintiff obtained a loan of KRW 7 billion by stealing the name of the Defendant and received interest of KRW 230,136,984 unfairly, the Defendant’s claim for return of unjust enrichment and the Plaintiff’s claim for return of unjust enrichment are offset.

The loan contract equivalent to KRW 7 billion between the Busan Savings Bank and the defendant is invalid due to a false representation in collusion, but the above loan contract can be valid and void depending on the plaintiff's position, which is the trustee in bankruptcy of the Busan Savings Bank. If the above loan contract is valid, if the defendant bears the obligation under the loan contract, the loan and the amount on the deposit account of this case deposited as it is should be attributed to the defendant. Thus, it cannot be evaluated as unjust profit merely because the defendant transferred the money from the deposit account of this case.

(2) Judgment of this Court

First, as to the defense above, the return of profits cannot be claimed if the debtor paid property due to an illegal cause (Article 746 of the Civil Act). However, the account transfer using the ordinary Internet banking system is mechanically formed after the formal judgment of the financial institution on whether the claimant himself/herself is the title-holder of the deposit account (the certificate and password, the code verification), and whether the amount of the claim for return is more than the balance of the deposit amount. Thus, it is difficult to view that the defendant's act of transferring the private deposit to his/her other deposit account is the act of payment of the Busan Savings Bank. Furthermore, even if there was a violation of the Act on Real Name Financial Transactions and Confidentiality and the Mutual Savings Banks Act, etc. in the process of opening and operating the deposit account in this case, even if the Busan Savings Bank had the defendant transfer KRW 240 million,000,000,000,000 to the defendant, it is unreasonable to evaluate that the act constitutes an illegal cause under Article 746 of the Civil Act, i.e., the act contrary to good morals and other social order.

Then, according to the facts acknowledged as above, if the Busan Savings Bank borrowed 7 billion won from the defendant and borrowed 7 billion won to the account of this case, it was used for the operation of the SPC, such as paying interest on the loan with the money, etc., and there is no evidence to prove that it received interest from the defendant separately. Thus, the above objection is without merit.

Finally, this article examines the argument about the occurrence of a disaster.

Since all property owned by the bankrupt debtor at the time that the bankruptcy debtor is declared bankrupt belongs to the bankruptcy trustee, the bankruptcy trustee holds the same status as the comprehensive successor of the bankrupt debtor. However, if the bankruptcy is declared, the bankruptcy creditor cannot exercise any bankruptcy claim without resorting to the bankruptcy procedure, and the bankruptcy trustee performs his/her duties with the care of a good manager for the common interest of all the bankruptcy creditors. As such, the bankruptcy trustee has a status as a third party who has an interest in the property independently from the bankrupt debtor according to the declaration of bankruptcy. Therefore, if the bankruptcy is declared that the bankruptcy debtor holds the most claim by a false declaration of intention in collusion with the other party, the most claim belongs to the bankruptcy estate, and the bankruptcy trustee who performs duties for the common interest of all the bankruptcy creditors in a position independent of the bankruptcy debtor following the declaration of bankruptcy falls under Article 108 (2) 3 of the Civil Act (see Supreme Court Decision 2003Da4284, Apr. 24, 2002).

If a loan contract equivalent to KRW 7 billion between the Busan Savings Bank and the defendant becomes null and void due to a false conspiracy, but even if the defendant cannot oppose the plaintiff as a third party acting in good faith, it is only in accordance with the above legal principles that the bankruptcy administrator holds the status as a general successor and a third party, and it does not affect the invalidity of the other party's intention depending on the existence of a false conspiracy with the third party. Thus, even if the defendant cannot oppose the invalidity of the above loan contract, the above loan contract between the Busan Savings Bank and the defendant is still null and void, and the above loan contract between the Busan Savings Bank and the defendant is also a Busan Savings Bank, which is not a party to the instant deposit account. Ultimately, the defendant's argument is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed.