급부부당이득에 있어 선의수익자의 이득소멸항변에 대한 소고

Abstract

With the respect to the restitution of unjust enrichment, a person enriched without notice is liable to return the unjust enrichment to the amount that he/she still possesses of such benefits pursuant to Article 748 (1) of the Korean Civil Act, and if the benefits that the person enriched is a pecuniary gain, the money is presumed to be still possessed by the person regardless of whether he/she consumed it or not. Accordingly, in a specific case, possibility that the defense of disenrichment by the person enriched is accepted was limited, and no clear standard for that was presented.
 The judgment that is the subject of this paper is the first judgment that generalizes one of the reasons for which the defense of disenrichment is recognized, ruling if a person gained pecuniary benefits without notice resulting from an invalid legal act ‘uses or disburses the money enriched in accordance with the instructions of the offeror or agreement with the offeror,’ then the presumption that the person enriched still possesses the benefits can be changed when returning the unjust enrichment.
 The defense of disenrichment under the Korean Civil Act corresponds to the defense of change of position under the U.S. Restatement (Third) of Restitution and Unjust Enrichment. These are all designed to protect a person enriched without notice, and the most significant difference between the Korean law and that of U.S. is a definition of ‘without notice’. Article 748 (1) of the Korean Civil Act interprets the ‘without notice’ as ‘in good faith (mere negligence),’ but Article 65 of the U.S. Restatement (Third) of Restitution and Unjust Enrichment interprets if a recipient gains any benefit without notice, then he/she gains that benefits with no-fault. As such, the court considers the fault of the recipient in recognizing the defense of change of position.
 The case that a person enriched without notice ‘uses or disburses the money enriched in accordance with the instructions of the offeror or agreement with the offeror’ which is presented as a reason for acknowledging the defense of disenrichment in the judgment that is the subject of this paper can be interpreted to mean that ‘no-fault’ of a person enriched must be taken into consideration when deciding the amount of benefits to be returned. In this respect, it can be said that U.S. Restatement (Third) of Restitution and Unjust Enrichment which does not consider the fault of a person enriched in determining unjust enrichment, but considers the fault of a person enriched when determining the scope of amount of benefits to be returned in order to decide whether the defence of change of position is recognized or not has significant implications for us when interpreting Article 748 (1) of the Civil Act.