(E)Return of unjust enrichment by 2020Na12088

A

Attorney Hong-il, Counsel for the defendant-appellant

B

Law Firm Domine, Counsel for defendant-appellant

[Defendant-Appellee]

Incheon District Court Decision 2019Gahap448 Decided May 20, 2020

October 29, 2020

December 24, 2020

1. The plaintiff's appeal and the plaintiff's additional claims are all dismissed. The costs of lawsuit after the appeal are filed on February, 199 shall be borne by the plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 8,95,630 won with the interest of 5% per annum from July 26, 2011 to July 4, 2019, and the interest of 12% per annum from the next day to the day of full payment (the plaintiff extended the amount of the claim for return of unjust enrichment with the legal brief dated 2020,10,27 from 30,995,630 won to 48,95,630 won).

2. Purport of appeal

The part against the plaintiff corresponding to the money ordered to be paid under the judgment of the first instance shall be revoked.

The defendant shall pay to the plaintiff 30,995,630 won with 5% interest per annum from July 26, 2011 to July 7, 2019, and 12% interest per annum from the next day to the date of full payment (the plaintiff withdraws an appeal on the claim for the return of the loan with the legal brief dated October 27, 2020 in this court).

3. Scope of the judgment of this court.

In the first instance court, the Plaintiff filed a claim for the return of unjust enrichment amounting to 30,95,630 won, 40,000,000 won upon the claim for return of loan, and damages for delay thereof, and the first instance court rendered a decision to dismiss all of them. The Plaintiff appealed the entire judgment of the first instance court, which extended the amount of the claim for return of unjust enrichment to 48,995,630 won with preparatory documents dated October 27, 2020, and withdrawn an appeal against the claim for return of loan. Accordingly, the scope of the judgment of this court is limited to the portion of the claim for return of unjust enrichment, including the extended portion

1. Basic facts

The reasoning for this part of the judgment of the court of first instance is that "the purchase price of this case" was "the purchase price of 1,340,000,000 (hereinafter referred to as "the purchase price of this case")" from 12th to 13th of the judgment of the court of first instance, and "the purchase price of 1,340,000,000" from 2th to 17th of the sale price" are "the purchase price of this case" and "the purchase price of 1,340,00,000,000 (hereinafter referred to as "the purchase price of this case")" from 1,340,000,000 out of the purchase price of this case", and the amount paid by the plaintiff as stated in 4th of the judgment of first instance after 4th of the judgment of the court of first instance was added to "the purchase price of this case was paid from the purchase price of this case" as "the purchase price of this case". This part of the judgment is

2. The plaintiff's assertion

The Plaintiff deposited the instant purchase price into the instant account, and the Defendant managed the instant account. The Plaintiff merely instructed the Defendant to pay KRW 1,291,04,370,000 in total, including KRW 946,00,000 from the purchase price of the I Commercial Building, KRW 54,59,00,00 for taxes incurred from the purchase of I Commercial Building, and KRW 23,445,370,000 for the transfer income tax on E commercial building, KRW 45,000 for the lease deposit for E commercial building, KRW 45,00,00 for the repayment of debt to D, KRW 5,00,00 for the Defendant, KRW 5,00,000 for the donations to D, and KRW 172,00,000 for the donations to D, KRW 1,291,04,370 for the Defendant.

The Defendant arbitrarily used or consumed the remainder of 48,995,630 won, excluding the money that the Plaintiff ordered to pay as above, out of the purchase price of this case.

Therefore, the defendant should return to the plaintiff 48,995,630 won as unjust enrichment.

3. Determination

The reasoning for this part of this Court is as follows, except for the dismissal of the judgment of the court of first instance as follows, since the reasoning for this part is the same as that for the fifth to seventh, and that for the fourth to fourth, this part is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

A. According to the fifth judgment of the court of first instance, the first to sixth to fourth is as follows. ① The Plaintiff asserts that the sales amount actually paid, excluding the security deposit, out of the sales amount of the I commercial building, was KRW 946 million.

However, there was no dispute between the parties that the Plaintiff directed the Defendant to pay KRW 964 million, excluding KRW 176,000,000,000 for lease deposit, out of KRW 1.14,000,000,000 for the purchase price of the I commercial building (the Plaintiff asserted as above from the warden to the preparatory brief dated April 28, 2020). In light of the evidence No. 8, it cannot be deemed that the above facts are contrary to the truth, and thus, the sales price for the commercial building that the Plaintiff directed the Defendant to pay is KRW 964,00,000,000,000,000,000 for the purchase price for the commercial building

② 피고는 원고가 지급을 지시한 내역에 대하여 ㉠ I 상가 매매대금으로 9억 6,400만 원, ㉡ 2011. 8. 1. 원고에게 송금한 4,000만 원, ㉢ I상가 매입으로 인한 비용 54,559,000원, ㉣ C에게 지급한 1억 7,200만 원, ㉤ 피고에게 증여한 돈 500만 원, ㉥ D에게 이체한 6,250만 원, ㉦원고가 2011.9.30. 대출받은 돈에 대하여 2011.10,26. 상환(상계해지)된 6,000만 원, ㉧ D, K에게 지급을 지시하였으나 D, K이 피고에게 준약 191만 원이라고 주장하고 있다.

Among the above details, the value of the Do governor or the Do governor is recognized as the above or the plaintiff is recognized, and the change of the state of war is less than the amount claimed by the plaintiff, and it can be recognized by adding up the whole purport of the pleadings No. 4, 5, 22.

In addition, the sum of the payment instructions recognized as above exceeds KRW 1.35 billion, 996 million, and KRW 1.34 billion of the purchase price of this case.

4. Conclusion

Therefore, the plaintiff's claim for return of unjust enrichment is dismissed as it is without merit. Among the judgment of the court of first instance, the part dismissing the plaintiff's claim for return of unjust enrichment is just and it is so decided as per Disposition by the assent of all.

The presiding judge, judge, Yellow-gu

Judges Lee Jae-hwan

Judges Jeon Soo-soo