상사소멸시효와 부당이득반환청구권 - 대법원 2021. 6. 24.선고 2020다208621 판결을 중심으로 -

Abstract

The right to claim return of unjust enrichment is a right recognized by Article 741 of the Civil Act. Nevertheless, When applying the statute of limitations on the right to claim the return of unjust enrichment seeking the return of benefits made through commercial transactions, the Supreme Court considers the nature of the transaction relationship and uses ‘whether or not it needs to be terminated promptly’ as the standard. The commercial statute of limitations is a system designed to realize the prompt termination of commercial relationships. The ‘need for rapid conclusion’ is recognized on the basis that commercial activities have the characteristic of being conducted continuously and repeatedly for an unspecified number of people, that is, they have business nature. However, since the statute of limitations system limits the rights of the true rights holder, the need for a speedy resolution needs to be interpreted limited to business-like commercial activities and auxiliary commercial activities that have a business nature. A claim for benefits made on the basis of a commercial transaction and a claim for return of those benefits on the basis of the invalidity of the commercial transaction have a corresponding relationship with each other. Therefore, in cases where a refund of unfair profits is claimed, it is considered appropriate to judge whether a prompt resolution is necessary based on whether the act causing the payment is a commercial act and whether the act is characterized by business nature. Recently, the Supreme Court applied the civil statute of limitations, not the commercial statute of limitations, to the right to claim return of profit dividend when a stock company's profit dividend to shareholders is invalid. The Supreme Court cited the fact that, the payment of profit dividends was not made as a result of commercial activity, and in terms of the principle of capital fidelity, there is no need for a prompt resolution in the return of illegal profit dividends. The conclusion and argument of this ruling are valid in that profit dividends are not commercial activities and do not have business nature.