1. Preliminary Defendant C is 121,334,800 won and 24% per annum from January 1, 2020 to the date of full payment.

Facts of recognition

In full view of the evidence submitted by the Plaintiff and the Defendants and the purport of the whole arguments, the following facts can be acknowledged.

On November 2, 2018, the Plaintiff lent 200 million won as a check to the Defendant C by setting the due date on January 2, 2019 and interest rate of 2% on January 2, 2019. The loan certificate is written in D by the debtor.

On May 22, 2019, the Defendants agreed to distribute 20% of the profits accrued from the disposal of the land to Defendant B and 80% of the profits accrued from the disposal of the land.

The Defendant C did not repay the loan, and on November 21, 2019, the Plaintiff, on the ground that the instant land was a trust property under the name of Defendant C, determined to dispose of the land at issue ( Jeju District Court Decision 2019Da11692).

After that, the Plaintiff received payment of KRW 75 million from Defendant B, and withdrawn the application for provisional disposition on December 30, 2019.

The Defendants, which caused the primary claim against Defendant B, concluded a trust agreement with Defendant C and the nominal trustee under the name of the contract with Defendant B. However, Defendant B, the nominal trustee, acquired the ownership pursuant to the trust agreement under the name of the contract, while Defendant C, the nominal trustee, suffered damages equivalent to the purchase fund and the acquisition cost.

Therefore, Defendant C has the right to claim the return of unfair benefits equivalent to the amount of damages to Defendant C, but it does not exercise its right on its own, and the Plaintiff has the right to claim the return of unfair benefits in subrogation of Defendant C.

Therefore, Defendant B should pay to the Plaintiff the amount of KRW 121,34,800 out of the amount of unjust profits and the amount of damages for delay.

Judgment

There is no dispute between the parties that the Defendants acquired the ownership of the instant land in a final and conclusive manner by establishing a trust in the name of the contract.

The problem is whether the defendant C has an unfair benefit return claim against the defendant C.

In this regard, the Defendants were able to do so.