[1] Where Article 64 of the Commercial Code provides for the five-year extinctive prescription period for the right to claim restitution of unjust enrichment applies

[2] In a case where Company A claimed a return of unjust enrichment on dividends received by Company B, etc. by claiming that the rights held in the auction procedure for the distribution of the debtor’s property were infringed, the case holding that the judgment below erred by misapprehending the legal principles, even though Article 64 of the Commercial Act should not be applied to the case where the right to claim the return of unjust enrichment, which was asserted by Company A, does not seek the return of benefits itself based on a contract that constitutes a commercial activity, and the legal relationship between Company B and Company B, etc., is not necessary to be promptly resolved to the

[1] Articles 162(1) and 741 of the Civil Act, Article 64 of the Commercial Act / [2] Articles 162(1) and 741 of the Civil Act, Article 64 of the Commercial Act

[1] Supreme Court Decision 2001Da47825 Decided June 14, 2002, Supreme Court Decision 2002Da64957, 64964 Decided April 8, 2003 (Gong2003Sang, 1079) Supreme Court Decision 2006Da63150 Decided May 31, 2007 (Gong2007Ha, 962), Supreme Court Decision 2012Da4633 Decided May 10, 2012 (Gong2012Sang, 998)

[Defendant-Appellee] K&C Co., Ltd. (Law Firm Lee & Lee, Attorneys Park Jae-ki et al., Counsel for defendant-appellee)

Defendant 1 and three others (Attorney Park Young-young, Counsel for the defendant-appellant)

Daejeon High Court Decision 2016Na12241 decided November 3, 2016

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

Article 64 of the Commercial Act that provides for the extinctive prescription of five years applies to a right to claim the return of unjust enrichment, even in cases where the right to claim the return of unjust enrichment is sought based on a contract that is a commercial activity. In light of the developments leading up to the occurrence of the claim, the cause leading up to the claim, the status of a party, and the relationship between the parties, etc., where it is necessary to promptly resolve the legal relationship to the same extent as that of the commercial transaction relationship (see, e.g., Supreme Court Decisions 2001Da47825, Jun. 14, 2002; 2006Da63150, May 31, 2007). However, Article 64 of the Commercial Act does not apply to cases where the content of the right to claim the return of unjust enrichment does not seek the return of benefit itself, or where it is not necessary to promptly resolve it, barring any special circumstance (see, e.g., Supreme Court Decisions 2002Da64957, Apr. 8, 20120).

In light of the above legal principles, the Plaintiff’s right to claim for restitution of unjust enrichment of this case, asserted by the Plaintiff, was infringed upon by the Defendants’ rights in the auction procedure regarding the debtor’s property, and thus, does not seek the return of benefits themselves based on a contract constituting a commercial activity. It does not seem to have any transaction relationship between the Plaintiff and the Defendants, and there is no need to promptly resolve the legal relationship between the Plaintiff and the Defendants to the same extent as that of the commercial transaction relationship. Therefore, Article 64 of the Commercial Act does not apply

Nevertheless, the lower court determined that the Plaintiff’s claim expired by five years. In so doing, it erred by misapprehending the legal doctrine on extinctive prescription, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Jo Hee-de (Presiding Justice)