양자간 등기명의신탁에서 부당이득반환으로서의 소유권이전등기 말소와 소취하 및 선택적 병합의 효과- 대법원 2023. 1. 12. 선고 2022다266874 판결을 중심으로 -

The obligation to return the original object as an unjust enrichment is an obligation to deliver a specific object (or conversely, a specific object claim) if the object of return is an object. And if the obligation to return the original object cannot be performed regardless of the beneficiary's intent or negligence, that is, if the received object cannot be returned (return is impossible), the loss party can claim the return of the value from the beneficiary, and (assuming that the requirements are met), the loss party as a creditor can also make a claim against the beneficiary as a debtor. Furthermore, if the debtor beneficiary fails to perform the obligation to return the original property due to his/her intention or negligence, the creditor who is the loss party may also claim compensation for damages caused by the non-performance of the obligation against the beneficiary (Article 390 of the Civil Act), This includes damages (compensation for damages) due to inability to perform (inability to return), which is a typical case of default, and damages (delay compensation) due to delay in performance (delay in return), the dominant view and the Supreme Court's recognition of the types of default include damages (compensation for damages) due to refusal of performance (refusal to return) and damages in lieu of performance (compensation for damages in lieu of performance; Article 395 of the Civil Act), which can be exercised when the debtor, the beneficiary, delays performance of the obligation to return the original property and the creditor, the loss, fails to perform within a reasonable period of time even if the creditor demands it, or performance after delay is not beneficial to the loss. However, the plaintiff, who had won all the first and appeal trials of the previous lawsuit seeking to cancel the transfer of ownership registration in the defendant's name regarding the land in question (the plaintiff's claim was accepted), suddenly withdrew the lawsuit in the appeal trial of the above lawsuit, due to the effect of the prohibition of re-litigation following the withdrawal of the above lawsuit, the plaintiff can no longer seek the cancellation of the transfer of ownership registration in the defendant's name through a lawsuit against the defendant, Accordingly, in this lawsuit, where the plaintiff selectively merged the claim for damages and the claim for return of unjust enrichment arising from the tort, the appellate court and the remand court rendered a judgment dismissing all merged claims. As previously seen, this is a full judgment, which has the effect of res judicata for all claims that have been selectively consolidated, so it can no longer be contested through the usual means. However, the right to claim damages (Articles 390 and 395 of the Civil Act, etc.) arising from the non-performance of the obligation to return the original property as unjust enrichment by the debtor beneficiary due to his/her intentional or negligent failure to perform in accordance with the contents of the obligation to return the original property as unjust enrichment by the creditor beneficiary has not been the subject of judgment in the previous lawsuit or this lawsuit, it has nothing to do with the prohibition of re-entry or the power of re-entry, Therefore, if the plaintiff, the victim, had asserted his claim for damages against the defendant, the beneficiary, for breach of duty to return the original property as unjust enrichment, and if the statute of limitations for each claim had not yet expired, he would have likely won the case (the plaintiff's claim was accepted).