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부당이득의 유형론에서 법체계투영이론으로 - 부당이득연구에서 법인류학연구로의 사적 회상
加藤雅信(Masanobu Kato),김상수(Sang-Soo Kim),맹관섭(GwanSeop-Maeng) 한국비교사법학회 2007 比較私法 Vol.14 No.2
Ⅰ. Introduction<BR> This paper focuses on three themes: a new theory of the Law of Unjust Enrichment, a legal anthropological study of the social structure of the origin of the notion of ownership, and an international comparison of contract consciousness. These have been the main subjects of my academic life for almost 40 years. In a sense, this paper is my academic memoir as I have changed my home institution from Nagoya to Sophia University and also am going to start my new job as a practitioner. <BR> Ⅱ. The Law of Unjust Enrichment<BR> When I started my study of the Law of Unjust Enrichment after graduating from Tokyo University, there were two main streams in this field in the civil law countries, an equity doctrine and a typology of the Law of Unjust Enrichment. As the contents of the Law of Unjust Enrichment werevery vague, no scholars could have made the substance of the Law of Unjust Enrichment clear based on a concrete concept. Thus, some scholars tried to explain the substance of the law with the vague notion of equity, and some scholars abandoned the idea of giving a solid base to the Law of Unjust Enrichment, instead, tryingto give a typological framework.<BR> However, the author reached a quite differentidea concerning the substance of the Law of Unjust Enrichment, after a careful analysis of all judicial precedents that had been made public after the legislation of the Japanese Civil Code. This new theory is called the “mirror theory," or the “project theory" of the complete system of law. In a situation where party A has transferreda property or good based on a contract to party B, and a contract is found to be invalid, party A can claim to return the property or good to B based on the law of unjust enrichment. The same structure can be found when a legal relation is invalid or inexistent in the generalscope of the Civil Code, the Law of Property, the Law of Obligation, the Family Law or the Law of Inheritance. Thus, invalidity or inexistence of legal relations in all five books of the civil code produces a claim of unjust enrichment. In addition to Civil Code legal relations, the same structure can be expanded to when a legal relation in the Commercial Code, administrative laws and other laws which relate to the transfer of property or good is invalid or inexistent. (For example, when cases in which a fine paid based on a provision in the Criminal Code, or property is transferred based on an execution provision in the Civil Execution Act, lack legal bases, a claim of unjust enrichment appears.)<BR> Usually, a property or good is transferred based on a valid legal relationship. In such a case, the Law of Unjust Enrichment does not work. In a case when a legal relation is invalid or inexistent, the Law of Unjust Enrichment works. A valid legal relation can be found in various fields of laws thatform a complete system of law. The Law of Unjust Enrichment is a mirror or projection of this complete system of law, when a legal relation in this complete system of law is invalid or inexistent.<BR> Ⅲ. How did the notion of ownership appear in the world?<BR> Even a child knows the word ownership. It is a fundamental concept in jurisprudence and in societies. However, no lawyers but legal philosophers discuss the intrinsic qualities of “ownership". This paper tries to interpret the nature of ownership from the viewpoint not of legal philosophy, but from a positive analysis based on legal anthropology.<BR> Historically, the most important ownership is that of land. However, people in hunt-and-gathering and nomadic societies do not know the notion of land ownership. Only people in farming societies have this notion. In addition, in a slash-and-burn society private land ownership is rare, and in extended families’ or villagers’ collective land ownership is common. Why do such differences appear?<BR> &nb
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