[1] In a case where a party to a contract provided direct benefit to a third party under another contractual relationship with the other party upon the other party’s instruction, whether the party can claim a return of unjust enrichment directly against the third party on the ground that there is a defect in the legal relationship between the party causing the payment and the other party or the contract was cancelled (negative)

[2] The meaning of a contract for a third party and the method of identifying whether a contract is applicable

[1] In a case where a party to a contract directly provides a third party who has a different contractual relationship with the other party by shortening the performance process through the other party’s instruction (the case where benefits have been provided in the so-called trimulse relationship), and the other party has provided a benefit to the other party as well as the other party has provided a benefit to the third party. Therefore, a party to the contract may not claim a return of unjust enrichment against a third party on the ground that he received a benefit from a third party without any legal cause. In such a case, if a party to the contract is able to claim a return of unjust enrichment directly against a third party on the ground that the party to the contract received a benefit from the other party without any legal ground, such as the invalidity of a legal relationship between the party having caused the benefit and the other party’s rescission of the contract, it would transfer the risk burden under the contract under its own responsibility to a third party, which would result in a violation of the principle of contract law, and the third party

[2] A contract is generally effective only between the parties. However, a contract for a third party is a contract entered into in the name of the parties to the contract with the aim of having a third party acquire rights directly to one of the parties to the contract. Therefore, whether a contract constitutes a contract for a third party is an issue of interpreting intent as to whether the intent of the parties to the contract is to acquire rights directly to a third party by the contract. As such, it may be determined by reasonably interpreting the intent of the parties to the contract by taking into account the purpose of the contract, the nature of the act done by the parties to the contract, the understanding and loss arising between the parties or between the parties to the contract, transaction practices, social functions of the contract system for

[1] Article 741 of the Civil Act / [2] Articles 105 and 539 of the Civil Act

[1] Supreme Court Decision 2001Da46730 Decided December 26, 2003 (Gong2004Sang, 207), Supreme Court Decision 2006Da46278 Decided September 11, 2008 (Gong2008Ha, 130), Supreme Court Decision 2013Da55447 Decided July 11, 2017 (Gong2017Ha, 1607) / [2] Supreme Court Decision 94Da5481 Decided January 26, 1996 (Gong196Sang, 726), Supreme Court Decision 97Da28698 (Gong197Ha, 3602) Decided October 24, 1997; Supreme Court Decision 2008Da84784 decided Oct. 24, 2006)

National Bank of Korea (Law Firm, Kim & Lee LLC, Attorneys Jeon Byung-han et al., Counsel for the defendant-appellant)

Han Asset Trust Co., Ltd. (Law Firm Compact, Attorneys Kim-hwan et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2016Na2080282 decided November 23, 2017

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Whether the Defendant’s return of unjust enrichment against the Nonparty exists (Ground of appeal No. 3)

A. In a case where a party to a contract directly provides payment to a third party who is under a different contractual relationship with the other party by shortening the performance process by the other party’s instruction (the case where payment has been made in the so-called trifa), the other party to the contract who provided payment has provided payment to the other party as well as the other party has provided payment to the third party. Therefore, a party to the contract may not claim a return of unjust enrichment against a third party on the ground that the other party received payment without any legal cause. In such a case, if a party to the contract is able to claim a return of unjust enrichment directly against a third party on the ground that the other party received payment from the third party without any legal ground, such as the invalidity of a causal relationship between the party who provided the payment and the other party or the contract has been rescinded, the risk burden under the contract under its own responsibility would be transferred to the third party, which would result in a violation of the principle of contract law, and the third party’s right to defense against the other party is infringed (see, e.g., Supreme Court Decision 20014Da4717.

B. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following facts.

(1) Acheon-si Construction Co., Ltd. (hereinafter “Acheon-si Construction”) is a construction company and a construction company that newly constructs and sells an ○○○○○○○○ apartment complex (hereinafter “the apartment of this case”) on the fourth parcel of land in Ansan-si, Anyang-si, and the construction company that newly constructs and sells it. The Nonparty entered into a contract for the Acheon-si Construction on October 20, 2008 and the sales contract for the △△△△△△△ Construction for the instant apartment of this case (hereinafter “the instant sales contract”).

(2) The Acheonyang Construction deposited the sales price under the instant sales contract into a fund management account opened in the name of the Defendant, a real estate trust company. This is because the Acheon Construction and the Defendant, etc., agreed to deposit all revenues from the instant sales contract with the fund management account in the name of the Defendant (hereinafter “instant business agreement”) and the additional agreement (hereinafter “instant additional agreement”).

(3) On November 28, 2008, the Defendant concluded a real estate security trust agreement (hereinafter “instant trust agreement”) with the trustor, the Defendant, the trustee, the Korea Mutual Savings Bank Co., Ltd. as the first beneficiary, the second beneficiary, the third beneficiary, and the second beneficiary with respect to the Acheon Construction and the instant apartment.

(4) After the cancellation of the instant sales contract, on January 8, 2016, based on the final judgment of the Seoul Central District Court 2014Da143578 loan case against the Nonparty, the Plaintiff: (a) as the debtor and the Defendant on January 8, 2016, the Defendant as the garnishee, and (b) received a seizure and collection order against the Nonparty regarding the “200,045,291 out of the claim for the refund of the sales price, where the sales contract was cancelled by acquiring the right to sell the instant apartment △△△△△△△△△△△△△△△△, which was sold by the Defendant by the Nonparty; and (c) received the seizure and collection order against the Defendant

C. We examine these facts in light of the legal principles as seen earlier.

The Nonparty’s deposit of the sales price into the Defendant’s account pursuant to the instant sales contract constitutes so-called “short payment”, and the Defendant received the sales price from the Nonparty on a legitimate basis pursuant to the instant business agreement with the Acheon Construction. The Nonparty is not a party to the instant business agreement, and even if the sales contract with the Nonparty was rescinded with the Acheon Construction, it does not affect the validity of the business agreement entered into between the Defendant and the Acheonyang Construction. Therefore, only the cancellation of the sales contract does not immediately cause the Defendant to hold the sales price received from the Nonparty, nor does the Nonparty have a duty to return the sales price to the Nonparty with unjust enrichment.

D. In the same purport, the lower court did not err by misapprehending the legal doctrine on return of unjust enrichment, contrary to what is alleged in the grounds of appeal, against the Nonparty’s rejection of the Plaintiff’s assertion against the Defendant.

2. Whether the Defendant’s obligation to return the sale price to the Nonparty exists (ground of appeal Nos. 1 and 2)

A. A contract is generally effective only between the parties. However, a contract for a third party is a contract entered into in the name of the parties in order to have a third party acquire rights directly to one of the parties to the contract. Therefore, whether a contract constitutes a contract for a third party is an issue of interpretation of intent as to whether the parties intend to acquire rights directly to a third party by the contract. As such, it can be determined by a reasonable interpretation of intent of the parties to the contract by taking into account the purpose of the contract, the nature of the act done by the parties to the contract, the understanding and loss arising between the parties or between the parties and the third party, transaction practices, and the social functions of the contract system for the third party (see Supreme Court Decisions 97Da28698, Oct. 24, 1997; 2004Da18804, Sept. 14, 2006, etc.).

B. The lower court recognizes the following facts. In the event a trust real estate is disposed of at the request of the first beneficiary before the expiration of the trust period under Article 21(1) of the instant trust agreement, the order of settlement of the proceeds from the disposal of the trust property is stipulated in the first order. Article 20(1) of the instant business agreement and Article 6 of the instant additional agreement stipulate the order of execution of the funds deposited in the fund management account, and the “expenses incurred in the disposal of the trust property” is stipulated in the first order.

The Plaintiff asserted that the Nonparty had the right to return the sales price directly to the Defendant as the instant sales contract concluded between the Nonparty and the Acheonyang Construction was cancelled, but the lower court rejected for the following reasons.

In addition, it is clear that the instant trust agreement and the instant business agreement were concluded between Acheon Construction and the Defendant, etc., and in light of the language, structure, and purport of the instant trust agreement and the provisions related to the instant business agreement, Article 21(1) of the instant trust agreement and Article 20(1) of the instant business agreement merely determine the burden of expenses incurred for the instant trust business or determine the order of payment, the method of disbursement, and the procedure. Therefore, the said provisions cited by the Plaintiff cannot be interpreted as a provision that aims at having a third party, not the parties to the instant trust agreement, etc., directly acquire the right to the Defendant, who is the trustee.

C. Examining the foregoing legal principles and records in light of the foregoing, the lower court did not err in its judgment by misapprehending the legal doctrine on a contract for a third party, or by violating the Supreme Court precedents concerning the order of funding for real estate PF business by the method of security trust and fund management agency, or by violating the principle of pleading or disposal.

3. Conclusion

The Plaintiff’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Chang-suk (Presiding Justice)