금전의 부당이득으로 인한 반환의무 -소위 『편취금전에 의한 변제』문제 서설-

Abstract

This article deals with a famous problem in the Korean law of unjust

enrichment. It considers whether and under what condition a debtor, whose

debt was paid with money acquired by a wrongdoing, for example, by deceit,

embezzlement or theft, either of the debtor himself or of a third party, will be

liable, based on the grounds of unjust enrichment (Art. 741 of the Korean

Civil Code), to compensate the same amount to the original source of the

money.

This paper, however, does not focus on the proposals for right solutions

to the problem. Rather it surveys the theory-historical (dogmengeschichtlich)

backgrounds of the view now prevailing in Korea. Such an examination will

reveal how the predominant view is deeply rooted in the outdated

understanding of the unjust enrichment law, which sees its foundation in the

equitable solutions of various contradictions between the legal institutions,

and thus desires to make it superior to any other positive laws. The article,

then, tries to show that the prevailing view is limited in its perspectives by

the fact that its main support is derived from the Japanese civil law

jurisprudence and court rulings before and in the 1930's and totally neglects

their developments thereafter.

The article suggests that the right solutions of this problem could be

solved by accepting the totally different understanding of the unjust enrichment

law. That is generally known as typological approach.