민법개정안의 몇 가지 쟁점에 관한 고찰 ; 부당이득에 관한 민법개정안 연구 = Korean Civil Code Amendment Draft on Unjust Enrichment Law

다국어 초록 (Multilingual Abstract)

The Ministry of Justice in Korea completed its ambitious legal project of preparing an amendment draft of the Korean Civil Code in Feb. 2014, after running the Civil Code Amendment Committee for five years. Since the enactment of the Civil Code back in 1960, Korean society has experienced drastic changes in various aspects. However, the Civil Code has never been comprehensively amended up to now. Thus, the final draft is highly significant. This paper introduces and analyzes the unjust enrichment part of the final draft. The draft reflects following changes. Article 742 of the draft makes it clear that performance of non-existing obligation gives rise to the claim for the reversal of enrichment only when the performance was made voluntarily. Article 746 of the draft reflects judicial precedents and relevant legal doctrines regarding performance based on an illegal cause by stipulating that the reversal of enrichment is allowed when illegality is mainly falls on the side of the enriched party. Article 747 of the draft categorizes the method of the reversal into the transfer of asset and the transfer of value, and it also clarifies that the reversal of enrichment extends to fruit and use of an enrichment. Article 747 Section 2 in the current Civil Code, which deals with the obligation of a third party who obtained the asset or benefit gratuitously from the enriched party in bad faith, is restipulated in Article 749-2 of the draft. There were further attempts to amend Article 741 (definition of unjust enrichment), 743 (discharge prior to due date), and 745 (discharge of another person’s obligation), but the Committee decided to leave as they are. We do not find conspicuous changes in the current draft for unjust enrichment, since the draft merely reflects present legal doctrines that reached consensus but were not manifestly represented in the Civil Code. This is in clear contrast with some other parts of the draft, such as the draft for a lien or a fraudulent transfer where bold moves and wide changes are incorporated. Perhaps it is mainly due to the nature of unjust enrichment law which deals with the fundamental issue of private law such as just allocation of property. Fundamental positions do not easily fluctuate with time. It remains to be seen whether or not this draft will finally be enacted in the near future. Yet, the draft itself is certainly worthy of being reviewed from both academic and practical point of view even before its enactment.