장물인 금전으로 한 변제와 관련한 제 문제 - 대법원 2010다89708, 2006다46278, 2005다76753 판결과 연관하여

Abstract

When a debtor makes any payment with fraudulent cash(defrauded money, stolen money), a creditor ought to have a legitimate explanatory cause to receive and retain it regardless of his subjective bad faith or gross negligence, and a victim of fraud ought not to exercise claims for return of unjust enrichment. Furthermore, even the creditor has a compensatory obligation to the victim from tort damages due to the guilt of receiving stolen property solely or committing a property crime as an accessory of the debtor, the creditor cannot exercise indemnity or return of unjust enrichment claims to the debtor. In fact, in all of fraudulent cash payment cases, the creditor ought not to demand repayment to the debtor by asserting the invalidity of such payment. The above conclusion is a matter of discussion in light of social justice and fairness. However, the Supreme Court decision 2010da89708 is considered to have violated the concept of social justice and fairness as it states that a debtor's risk of general insolvency liable for the original primal responsibility to the victim is transferred to the creditor who has legitimate cause of benefits due to the principles of equity. If the creditor has bad faith or gross negligence, the victim can preserve his own damage without using claims for return of unjust enrichment. Nevertheless, there is no need to overprotect the victim without considering the peculiarities of money distribution and legal stabilities. Eventually the ultimate responsibility is on the creditor who received repayment in the legal relations of reimbursement with fraudulent cash. But it is the case of that the creditor has bad faith or gross negligence, or even if not, the creditor has to charge for criminal and tort liabilities as it result accordance with the principles of equity. In addition, receiving stolen property is the majority of causing property crimes. So the guilt of receiving stolen property is punished more heavily than property crimes principal offender in criminal law. Therefore, in the cases which a creditor has a criminal liability such as receiving stolen property or a creditor has bad faith or gross negligence are criticized by high degrees of social condemnation than a debtor. So the conclusion of this specification resulted is the most appropriate in these legal relations.