2011Da102851 Return of provisional payments

Plaintiff clan

Law Firm Taeyang, Counsel for the defendant-appellant

[Defendant-Appellant] 1 and 5 others

Defendant

Seoul Central District Court Decision 2011421463 Decided October 28, 2011

March 29, 2012

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. The plaintiff retired from office and filed a complaint against the defendant for the return of KRW 21,419,205, which the defendant did not disclose the place of use, out of KRW 64,870,00 that was paid by the plaintiff to the defendant to whom the delegation relation terminated between the plaintiff and the plaintiff, and the defendant paid the above amount in accordance with normal business process. The court below acknowledged that the defendant submitted the lending slips of KRW 64,870,00 to the plaintiff according to its adopted evidence, and the non-party to the auditor of the plaintiff clan against the defendant around August 22, 2001 to December 30, 2003, the defendant kept the funds of the plaintiff clan from February 22, 2001 to December 30, 2003, and embezzled them under the pretext of provisional payment. However, the defendant asserted that the above expenses were spent in accordance with normal business process, and the defendant did not have any other evidence to acknowledge that the defendant did not have any copy of the above amount of KRW 64,000.

2. However, a mandatary shall deliver to the mandator any money or other things received in the course of the management of the entrusted affairs and the negligence received therefrom, and if the mandatary consumes on behalf of the mandator any money to be delivered to the mandator or any money to be used for the benefit of the mandator, he shall also pay to the mandator the interest thereof (see, e.g., Articles 684 and 685 of the Civil Act). This shall also apply where the mandatary has received the money in advance from the mandator for the performance of his duties. Thus, if there is any money remaining after being used in the performance of his duties in advance from the mandator, the mandatary is liable to return it to the mandator, and the mandatary shall not refuse to return it unless he proves the amount and purpose of the expenses disbursed.

Nevertheless, the court below rejected the plaintiff's claim on the ground that the plaintiff recognized the fact that the plaintiff paid 64,870,000 won to the defendant in advance as business expenses, but the defendant did not prove that the above amount was not properly paid. In this case, the court below erred in the misapprehension of the legal principle as to the mandatory's duty of return in delegation, and the ground of appeal pointing this out is with merit (However, according to the evidence Nos. 1, the above amount is stated as "temporary provisional payment" for the purpose of paying KRW 800,000 as of June 18, 2001 and KRW 19,200,000 as of July 5, 2001.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon

Justices Jeon Soo-ahn

Justices Yang Chang-soo

Justices Kim Yong-deok