[1] The meaning of illegality as an element for illegal consideration

[2] The case holding that in a case where Gap lent money to Eul company for the purpose of assisting in rebuilding construction, even if there are anti-social elements in light of the legislative intent of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents or the Framework Act on the Construction Industry and the fairness in the selection of construction works, it cannot be viewed as illegal consideration under Article 746 of the Civil Code which violates good morals and other social order

[3] Whether the provisions of the Civil Procedure Act concerning service of the Civil Procedure Act may apply mutatis mutandis to whether notice of assignment of claims reaches the obligor (negative)

[1] Article 746 of the Civil Act / [2] Article 746 of the Civil Act / [3] Articles 111(1) and 450 of the Civil Act, Article 183 of the Civil Procedure Act

[1] Supreme Court Decision 2003Da41722 Decided November 27, 2003 (Gong2004Sang, 19) / [3] Supreme Court Decision 97Da31281 Decided November 25, 1997 (Gong1998Sang, 5) Supreme Court Decision 2010Da57 Decided April 15, 2010 (Gong2010Sang, 894)

Culul Construction Co., Ltd. (Law Firm Barun, Attorneys Park Jae-sik et al., Counsel for the plaintiff-appellant

Commission and two others (Law Firm LLC et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na87999 decided August 20, 2010

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

The term "illegal cause" as stipulated in Article 746 of the Civil Act, which is prohibited from a claim for return of unjust enrichment, refers to a cause of violation of good customs and other social order. Even if the cause is a violation of the prohibition of law, it does not constitute a case where it does not violate good customs and other social order (Supreme Court Decision 2003Da41722 Delivered on November 27, 2003).

According to the facts established by the court below and its adopted evidence, the plaintiff extended a total of KRW 900 million from August 12, 2004 to the Corporation (hereinafter "the defendant company") at free interest rate on six occasions from August 19, 2005 to August 19, 2005, and the defendant 2, the representative director of the defendant company, joint and several surety for the above loan obligation. The plaintiff extended the above KRW 900 million to the defendant company for the purpose of receiving information on the reconstruction executed by the defendant company, and receiving assistance in rebuilding work. The plaintiff extended the above KRW 900 million to the defendant company for the purpose of receiving assistance in rebuilding work. The plaintiff could not be seen as having received the loan from the defendant company as collateral for the above loan obligation on August 12, 2004 from the defendant company to the defendant company as a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) in relation to the loan of this case, the plaintiff could not be seen as having received the loan from the defendant company's principal and interest rate of KRW 1000 billion.

Examining the above facts in light of the legal principles as seen earlier, even if there are anti-social elements in that the Plaintiff’s lending KRW 900 million to the Defendant Company for the purpose of receiving orders for reconstruction construction works and receiving money in relation to receiving orders for construction works, or the purpose of legislation of the Framework Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, or the Framework Act on the Construction Industry, and the fairness, integrity, and transparency in the selection of construction works, the Plaintiff loaned the Defendant Company with an intention to receive a refund rather than granting a refund of KRW 900 million to the Defendant Company without having intention to receive a refund. However, the Plaintiff offered the Defendant Company a financial profit equivalent to the interest of KRW 90 million by making a loan without intention, and thus only can the amount equivalent to the financial profit equivalent to the above KRW 900 million as a bribe, and it cannot be deemed that the total amount of KRW 900 million is a property related to a bribe or illegal solicitation, and thus,

Nevertheless, the lower court, solely based on the circumstances indicated in its reasoning, determined that the Plaintiff’s payment of KRW 900 million to the Defendant Company constitutes illegal consideration and thus, the Plaintiff cannot claim the return of the said money. In so doing, the lower court erred by misapprehending the legal doctrine on illegal consideration, thereby adversely affecting the conclusion of the judgment. The allegation in

2. As to the third ground for appeal

The notification of the transfer of claims takes effect upon arrival of the debtor. Here, the arrival refers to a situation in which the other party is deemed to have been placed in an objective state where the content of the notification can be known by social norms. As such, the arrival is a more flexible concept and does not require the strictness like the above service in terms of the service place, the service place, the receiver, etc., and the provisions of the Civil Procedure Act concerning the service place, etc. do not apply mutatis mutandis. Therefore, even at a place that does not fall under the obligor’s address, residence, business place, or business place as prescribed by the provisions of the Civil Procedure Act concerning the service of claims under the Civil Procedure Act, the notification of the transfer of claims is sufficient when it is recognized that the obligor is placed in an objective state where the obligor can know the contents of the notification under social norms (see Supreme Court Decisions 97Da31281, Nov. 25, 1997; 2010Da577, Apr.

According to the reasoning of the lower judgment and the record, the instant notice of assignment of claims was delivered to the Defendant’s association’s 4th floor in Boan-si, Suan-si, 549-11, which is the address of the Defendant’s association; the fact that Nonparty 1, who is an employee of the Defendant’s association, received the said notice of assignment of claims at the Korea Post Investigation Board; Nonparty 1 was in charge of the receipt of postal items delivered to the Defendant association; in the absence of Nonparty 1, who is the employee of the Defendant company working at the same place, received postal items instead of Nonparty 2, who is the employee

Examining the above facts in light of the legal principles as seen earlier, Nonparty 1, an employee of the Defendant Union, appears to have received the instant notice of assignment of claims. Even if the Defendant Union did not actually receive the said notice, considering the fact that the said notice of assignment of claims was delivered to the Defendant Union’s domicile, and that there is a high possibility that it would have been delivered to the Defendant Union, it is reasonable to view that the above notice of assignment of claims reached the Defendant Union by recognizing that the Defendant Union, an obligor, had been in

Nevertheless, the court below determined that the notification of the assignment of claims has not been reached from a different point of view. In so doing, the court below erred by misapprehending the legal principles on notification of the assignment of claims, which affected the conclusion of the judgment. The ground of appeal assigning this error

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)