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(영문) 서울고등법원 2016.12.09 2016나2011170
보관금청구
Text

1. Of the judgment of the court of first instance, the part against the Plaintiff corresponding to the following additional payment order shall be revoked.

Reasons

1. Basic facts

A. A. Around 2007, when the Plaintiff paid real estate purchase price and management expenses to the Defendant, the Defendant entered into a delegation contract on behalf of the Plaintiff to purchase and manage the real estate under the name of the Plaintiff or the Plaintiff’s child C (hereinafter “instant delegation contract”).

B. The Defendant purchased each building listed in the separate sheet No. 1 on behalf of the Plaintiff according to the instant delegation agreement on behalf of the Plaintiff, and completed the registration of ownership transfer in the name of the Plaintiff or C with respect to each of the above buildings.

A building listed in attached Form 1 List 1 (1) on July 12, 2007, as stated in attached Table 1 List 1 (1) on the registration titleholder on the date of registration of transfer of ownership on the date of sale of an object of sale and purchase; C82,000,000 on Sep. 10, 2007; and (2) on Jan. 25, 2008, the building listed in attached Table 1 List 2 (2) on Jan. 29, 2008, Plaintiff 50,000,000 on May 15, 2003 (based on recognition) of the building listed in attached Table 1 List 20,00,000 on March 21, 208; (3) there is no dispute; (4) evidence Nos. 13 through 15, 23; (3) evidence No. 6-1, 2-23; and (1) testimony and testimony of witness D; and the purport of the whole pleadings

2. Determination as to the claim for refund of each money listed in Attached Table 2 Nos. 1 through 11

A. According to Article 684(1) of the Civil Act regarding the determination of the cause of the claim, a mandatary shall deliver money, goods, and other things received through the management of delegated affairs to the mandator, if any, and if there is any negligence on the part of the mandator.

This is also the case where the mandatary receives the money from the mandator in advance for the expenses of business process.

Therefore, a mandatary is obligated to return any balance remaining after he/she used for performing his/her duties in the expenses he/she received, and a mandatary cannot refuse to return such expenses unless he/she proves the amount and purpose of the expenses he/she paid, if any.

At this time, the time of delivery is stipulated by a special agreement between the parties or contrary to the essence of delegation.

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