2012Da84417 Return of Unjust Enrichment, etc.

2012Da84424 (Consolidation) Return of unjust enrichment

2012Da84431 (Consolidation) Return of unjust enrichment

As shown in the attached list of plaintiffs.

[Judgment of the court below]

Attorney Kim Tae-hoon

Gaeto Co., Ltd.

Law Firm (Bae, Kim & Lee LLC)

Attorney Bailment-il et al.

Seoul High Court Decision 2011425727, 2011Na25734 decided August 23, 2012 (C)

Gohap, 201Na25741 (Joint Judgment)

January 23, 2014

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

The grounds of appeal are examined.

1. As to the second ground for appeal

Article 3 (1) of the Act on Fair Labeling and Advertising (hereinafter referred to as the "Act on Fair Labeling and Advertising");

false or exaggerated advertisements shall be conducted differently from the facts or excessively unfasible advertisements;

any advertising act that is likely to deceive or mislead consumers and that is likely to mislead consumers;

(1) The term "advertisement" means an advertisement that is likely to undermine one's transaction order, and the advertisement belongs to or is a consumer;

in such a manner that consumers with common caution are likely to become aware of such a mistake.

They shall be objectively determined on the basis of the total and ultimate increase.

Supreme Court Decision 96Du5636 delivered on March 27, 1998, Supreme Court Decision 2002Du6965 Delivered on June 27, 2003

see, e.g., see).

On the other hand, there is a little exaggeration or falsity in the publicity and advertisement of the product.

On the other hand, in light of the practices of commercial transactions and the good faith principle, there is a lack of deception that can be accepted.

B. In the light of the duty of good faith, specific facts as to material facts in the transaction

In a case where a false notice is made to the extent that such notice would be received, it constitutes a deception (Supreme Court Decision 8 August 1993).

13. Supreme Court Decision 92Da52665 Decided October 23, 2008 and Supreme Court Decision 2007Da44194 Decided October 23, 2008, etc.

For reasons indicated in its reasoning, the lower court’s act of labeling and advertising related to roads No. 1-43 as indicated in its holding.

increase that a general consumer with common caution receives in whole and ultimately the content thereof;

on the basis of B, the consumer is a consumer who is different from, or excessively unrefised from, the fact;

such indications and advertisements as are likely to mislead the establishment of the road plan No. 1 - 43.

It is also an apartment transaction that is likely to undermine the fair trade order.

To the extent of being subject to criticism in light of the duty of good faith on important matters

It was determined that the case constitutes a false notification by means of such method.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles, the lower court’s aforementioned determination is justifiable.

In addition, there is no error of law such as misunderstanding of legal principles as to false or exaggerated advertisements.

2. As to the third ground for appeal

Examining the reasoning of the judgment below in light of records and related legal principles, the court below's reasons as stated in its judgment.

the Defendant, the contractor of the apartment of this case, has indicated and advertised the apartment of this case.

As the executor of the apartment of this case, EFA Co., Ltd., which is the executor of the apartment of this case

The decision that the above-mentioned and the exaggerated advertisement shall be held liable for damages is justifiable, and there is a false or exaggerated advertisement.

There is no violation of law such as misunderstanding of legal principles concerning the subject of advertisement or joint tort.

3. As to the fourth ground for appeal

Examining the reasoning of the lower judgment in light of the record, the lower court’s reasoning of this case

The amount of damages caused by false or exaggerated advertisements shall be calculated at an amount equivalent to 3% of the sales price.

There is no error in the misapprehension of legal principles as to the scope of liability for damages and comparative negligence.

4. Regarding ground of appeal No. 1

When it is decided to authorize the rehabilitation plan, rights of rehabilitation creditors, etc. shall be altered according to the rehabilitation plan

and shall be subject to the provisions of the Debtor Rehabilitation and Bankruptcy Act (hereinafter referred to as the "Act").

any rehabilitation claim and any rehabilitation security right, except for any right recognized as such;

(Articles 251, 252, and 252 of the Act), even if a decision is made to terminate rehabilitation procedures after the authorization is granted for the rehabilitation plan.

The debtor shall be deemed to continue to perform the rehabilitation plan, such as repayment of obligations, as prescribed in the rehabilitation plan.

As such, the completion of rehabilitation procedures is pending in the lawsuit seeking confirmation of rehabilitation claims, etc.

Where a decision is made, the purport of the claim seeking confirmation of the rehabilitation claim, etc. shall be implemented as rehabilitation claims, etc.

It is not necessary to modify the purport of the claim, and the confirmation of rehabilitation claims, etc. after the rehabilitation procedure has been completed.

If a creditor's right becomes final and conclusive through a lawsuit, the result of the lawsuit shall be recorded in the table of

(Article 175 of the Act) and undetermined rehabilitation claims, etc. shall be dealt with in accordance with the provisions of the rehabilitation plan.

Therefore, it was decided that the rehabilitation procedure is terminated while the lawsuit for confirmation of rehabilitation claim is pending.

In fact, a creditor seeks to implement a claim seeking confirmation of rehabilitation claims, etc.;

The purpose of the claim was modified and accordingly the court rendered a judgment ordering the implementation of rehabilitation claims, etc.

, this is illegal because it is against the validity of the approval decision of the rehabilitation plan and the termination decision of the rehabilitation procedure.

According to the reasoning of the judgment below and the records, the plaintiffs on April 1, 2010, and the defendant and Etha Co., Ltd.

The court of first instance filed a lawsuit against Ap for claiming restitution of unjust enrichment, etc., and the court of first instance held the necessary hearing.

On February 10, 2011, the plaintiffs' primary claims are dismissed, and the conjunctive claims are accepted in part.

The facts that the defendant rendered some favorable decisions, and the defendant was ordered to commence rehabilitation proceedings on November 24, 201.

In the event of Plaintiff 60, December 15, 201, Plaintiff 60, and the rest of the Plaintiffs on December 22, 2011, against the claim claim of this case.

(1) The non-party, who is the administrator of a rehabilitation company, shall file a report on rehabilitation claims; and

With respect to the report on rehabilitation claims by the plaintiffs, the plaintiffs raise an objection to the report on rehabilitation claims on January 30, 2012 by the officers of the rehabilitation company.

On March 22, 2012, the rehabilitation plan approval was issued on March 22, 2012, and the plaintiff

On May 22, 2012, the fact that the purport of the claim is amended to seek the confirmation of rehabilitation claims, and May 2012.

24. A decision to terminate rehabilitation procedures was made on June 19, 2012, and the plaintiffs filed an application to resume the lawsuit against the defendant on June 19, 2012.

At the same time, the purport of the claim is amended to seek monetary payment again, and the lower court on August 23, 2012

Part of the judgment of the court of first instance that partially modified the judgment of the court of first instance rendered in favor of the defendant.

the court's finding of the facts charged.

According to the above legal principles, even if the rehabilitation company was decided to terminate the rehabilitation procedure

Upon receipt of the confirmation of the right through the rehabilitation claim confirmation lawsuit, the Plaintiffs shall demand the payment of money again.

Inasmuch as there was no need to modify the purport of the claim, the court below erred by misapprehending the purport of the claim.

The confirmation of rehabilitation claims, provided that a judgment ordering the Defendant to pay the money due to the change

There is an error of law by misunderstanding legal principles as to the effect of the termination of rehabilitation procedures and thereby affecting the judgment.

C. The ground of appeal pointing this out is with merit.

5. Conclusion

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.

Justices Lee Sang-hoon

Justices Shin Young-chul

Justices Kim Yong-deok

Justices Kim So-young

A person shall be appointed.