2010Na20706 Return of paid-in erroneous payments

A Stock Company

Mad Representative Director

B Bank

Attorney Ro-D1

Busan District Court Decision 2010 Ghana127853 Decided October 15, 2010

March 25, 2011

April 22, 2011

1. The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

2. The plaintiff shall pay to the defendant 4,433,400 won with an interest rate of 5% per annum from December 9, 2010 to the day of complete payment.

3. The plaintiff shall bear the total costs of litigation and the costs of filing an application for return of provisional payments.

4. Paragraph 2 can be provisionally executed.

1. Purport of claim

The defendant shall pay 4,433,400 won to the plaintiff on February 2, 199

The text of paragraph (1) is as follows.

3. Paragraph (2) of this Article shall also apply to the purport of the request for the return of provisional payments.

1. Basic facts

가. 원고는 2010. 2. 22. 주식회사 에 물품대금을 지급하면서 착오로 주식회사 ★(이하 '★'이라 한다)의 피고 은행 계좌(계좌번호○○○-C0-000,이하 '이 사건 계좌'라 한다)로 4,433,400원을 입금하였다.

B. On February 26, 2010, the Plaintiff requested the return of the remittance amount by notifying the Defendant bank of the wrongful remittance, but the Defendant bank rejected the request. Accordingly, the Plaintiff rendered a favorable judgment against the Defendant bank on October 15, 2010, and received KRW 4,433,400 as provisional payment from the Defendant on December 9, 2010. Meanwhile, the National Pension Service seized the instant account on January 18, 2010.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, Gap evidence 2-2, Gap evidence 3, 4, 5, Eul evidence 2 and 3, and the purport of the whole pleadings

2. Determination on the claim for refund of the amount of deposit error

A. The parties' assertion

원고는, 원고가 착오로 자금이체의 원인관계 없이 이 사건 계좌에 송금한 것이므로 송금한 금액의 반환을 구하고, 이에 대하여 피고 은행은, 피고 은행이 ★에 대한 대출금채권을 자동채권으로 하여 송금된 금액을 상계할 권리가 있다고 다툰다.

B. Determination

Even in cases where a remitter deposits money into an account of an addressee without any relationship between the cause of the transfer of funds by mistake, the payee and the receiving bank acquire the deposit claim by establishing a deposit contract equivalent to the deposit amount. However, in cases where the remitter requests the receiving bank to return the remittance on the ground that the remittance is erroneous remittance and the payee approves the return thereof to the receiving bank by recognizing that the remittance is an error remittance, offsets against the deposit claim equivalent to the money deposited into the account of the payee by mistake in the account of the receiving bank by the automatic claim of the borrower’s loan claims, etc. against the payee’s deposit claim against the payee by means of the recipient’s deposit claim, barring special circumstances such as the lending bank in good faith and the acquisition of the automatic claim by using the recipient’s deposit claim as security or the seizure of the deposit claim by a third party, it is against the good faith principle or abuse the right to offset (see Supreme Court Decision 2007Da6088, May 27, 2010).

그런데, 국민연금공단이 2010. 1. 18. 이 사건 계좌를 압류한 사실은 앞서 본 바와 같고, 을 제1호증의 기재에 변론 전체의 취지를 종합하면, 피고 은행이 ★에 323,351,325원의 대출원리금채권을 가지고 있는 사실이 인정되므로, 앞서 본 법리에 비추어 보면, 피고 은행은 ★에 대한 대출금채권을 자동채권으로 하여 원고의 착오송금으로 이씨 통장이 취득한 예금채권과 상계할 권리가 있다 할 것이어서, 원고의 주장은 이유 없다.

3. Determination on the application for the return of provisional payments

As seen earlier, the judgment of the court of first instance must be revoked unfairly, so the sentence of provisional execution of the court of first instance shall also become null and void due to this judgment. As such, the Defendant’s provisional payment of KRW 4,433,400 to the Plaintiff on December 9, 2010 for the purpose of avoiding provisional execution of the judgment of the court of first instance is identical as seen earlier. As such, the Plaintiff is liable to pay to the Defendant 4,433,400 as provisional payment and damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from December 9, 2010 to the date of full payment, as sought by the Plaintiff.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance, which has different conclusions, is unfair, so the plaintiff's claim is dismissed, and the defendant's claim for return of provisional payment is justified, and it is so decided as per Disposition.

The presiding judge, judge and senior judge;

Judges Kang Han-hee

Judges Park Chang-hee