방위사업법에서의 부당이득금 환수제도 개선방안

Abstract

A defense project contract has a number of different characteristics from a general national contract, such as a large amount of capital is invested and a long period of time from request to delivery. In the course of the implementation of the defense project contract, the contract partner's breach of contract and illegal acts appear in various forms. The act of earning profit by submitting false or other illegal cost calculation data is an act that undermines the principle of good faith and is subject to the return of unjust profit. However, although the principle on the recovery of unjust enrichment is stipulated in the Defense Acquisition Program Act, there is no clear regulation on detailed calculation methods or standards, so it is necessary to clarify the legal nature of unjust profit, specify the subject and scope, and establish clear standards for the calculation method. First of all, it is reasonable to view that the right to claim the return of unjust enrichment corresponds to the right to claim compensation for damages caused by default, and the legal nature of the additional charges is a penalty for breach of contract. However, since it is stipulated differently from the legal purpose of the recovering system for unjust enrichment, it is necessary to prevent confusion by amending the relevant provisions to compensate for the damages corresponding to the unjust enrichment. In addition, although the current regulation stipulates the recovery of unjust enrichment, there is no regulation on the calculation method of unjust enrichment, so there is room for dispute over this, so it is necessary to specify that the difference between the contract amount and the settlement cost is the unjust enrichment. On the other hand, according to the current Defense Acquisition Program Act, it is stipulated that unjust enrichment and additional charges be recovered simultaneously, but there is no regulation on exemption from additional charges. Even in the case of imposing an additional charge, it is necessary to ensure specific validity by imposing an additional charge of an amount smaller than the amount of unjust enrichment.