(a) The repayment of debts by the person who brought an action on the existence of an obligation is in progress of auction and is in default;

(b) the bank's payment guarantee and the legal nature of the credit which can be cancelled;

A. Even if the plaintiff filed a lawsuit for confirmation of the existence of an obligation and the auction for the debt is in progress, and it is inevitable to repay the debt, it shall not be deemed to have been repaid with the knowledge of the non-performance of the obligation, thereby seeking the return thereof.

(b) The payment guarantee letter by the bank is a kind of bank guarantee that the bank ultimately guarantees a certain obligation between the parties under certain conditions, and its nature is different from the cancelled letters of credit that may not impose any definitive obligation such as payment, purchase of notes, etc. by the bank;

§ 742, Article 428, Article 689 of the Civil Code, Paragraph 6 of the General Rules on the Unification of Commercial Credits

Yongsan Cargo Transport Co., Ltd., Counsel for the defendant-appellant

Seoul Trust Bank Co., Ltd., Counsel for the plaintiff-appellant

Seoul High Court Decision 76Na3205 delivered on December 4, 1979

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

The grounds of appeal by the Plaintiff’s attorney are examined.

With respect to Section 1:

According to the reasoning of the judgment of the court below, the court below acknowledged that the plaintiff's assertion that when the plaintiff repaid the defendant the indemnity amount of KRW 137,943,275 to the defendant on August 6, 197, the plaintiff paid the indemnity amount of KRW 137,943,275 to the defendant, the plaintiff did not have any effect on the defendant's reimbursement of the indemnity amount of KRW 136,100,00,000 which was pending at the time of the plaintiff's repayment of the indemnity amount of KRW 137,943,275 to the defendant, the plaintiff's assertion that the plaintiff would have been conditioned to return the amount of the indemnity amount to the defendant upon the completion of the plaintiff's winning in favor of the plaintiff, the non-party 1's testimony consistent with the judgment of the court below cannot be recognized as having any other evidence to prove that the non-party 2's testimony and the statement of evidence Nos. 21, 197, which had no effect on the plaintiff's reimbursement claim for the defendant's reimbursement.

Therefore, the court below's rejection of the plaintiff's claim for return of unjust enrichment under the above determination is just and there are no such errors as misunderstanding of legal principles of non-performance like the theory of lawsuit, exceptional reasons for non-performance of debt, and omission of judgment. There are no grounds for appeal.

With respect to Section 2:

In full view of the evidence at the time of the decision of the court below, the payment guarantee issued by the defendant is acknowledged as a guarantee for payment of the obligation that the defendant agreed to the effect that the defendant becomes a guarantor to the non-party company as to the liability for damages to the above non-party company due to the non-party company's non-performance of the plaintiff's obligation under a charter contract between the plaintiff and the non-party 1's non-party 1's non-party 2. Such payment guarantee is a kind of bank guarantee that the bank definitely guarantees a certain obligation between the parties under certain conditions, such as payment, purchase of bills, etc., of which the bank is able not to bear any definitive obligation such as payment, purchase of bills, etc., and its nature is different (Article 2-3 of the evidence of the court below). However, according to the concept of "non-party 1's commercial L/C issuance request when the plaintiff requests the defendant to issue this case's payment guarantee -, on the other hand, it is not possible to cancel the letter of credit;

Therefore, the appeal based on the logic that the UCP should be applied on the premise that the letter of credit payment guarantee is a kind of commercial letter of credit, cannot be adopted, and there are no errors in the misapprehension of legal principles as to the interpretation of the letter of credit and the omission of judgment on the original judgment.

Next, the Defendant’s payment of the guaranteed obligation to the Nonparty Company based on the above payment guarantee letter is done on its own account by its own judgment as a guarantor, not due to the execution of delegated affairs by the Plaintiff, the principal debtor. Therefore, it cannot be employed as an independent opinion that the Defendant’s payment guarantee contract should be viewed as a delegation contract under the Civil Act between the principal debtor and the Defendant.

All arguments are groundless.

With respect to Article 3:

According to the reasoning of the judgment below, the court below held that the defendant's act of paying the deposit to the non-party company based on the payment guarantee of this case was conducted under the defendant's own judgment and calculation, and that the payment cannot be asserted in relation to the plaintiff, and thus, losses cannot be incurred to the plaintiff. Thus, even if the defendant's act of paying the deposit is illegal as alleged by the plaintiff, it cannot be viewed as an act of attempted to inflict property damage on the plaintiff intentionally or by negligence. The above judgment of the court below is just and there is no error of law

The issue is groundless.

Therefore, the appeal is dismissed without merit, and the costs of the appeal are assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-chul (Presiding Justice)