금전의 이동(移動)과 물권적청구권 -가치 소유권 및 의제신탁으로부터의 시사- = Transfer of money and proprietary right over money -Implication from Wertvindikation and constructive trust

다국어 초록 (Multilingual Abstract)

In Korean civil law, it is widely accepted that, when the possession over money passes on, the ownership also transfers. This rule can well explain an ordinary function of money as a payment device, but it cannot be a grand theory applied in every situation concerning the transfer of money. It is necessary to characterize various cases, balance the interests of three concerned parties - ① previous owner, ② current (or quasi) owner, ③ the creditor of current (or quasi) owner, - and accordingly set up different rules. When it comes to ``cash consignment``, whether the ownership over money passes on or not depends on the consignor`s will. And a thief does not have ownership over the stolen money(``cash``). When it comes to ``money in a bank``, it is desirable to divide three different cases. First, when one transfers his own money in a bank to another voluntarily or aceepts that his own money is kept in other`s bank account, in principle the ownership over the money also passes on to the transferee and the previous owner does not have priority over that money in a bank. Second, when one transfers his own money in a bank to another by mistake, the previous owner does not have the proprietary right over that money in a bank, too. But it is advisable to reform the laws for the protection of the previous owner. Third, when money in a bank has appeared or has been transferred through the wrongful acquisition, it is desirable to admit the proprietary right over that money - Wertvindikation - to the previous owner as if he were constructive trustor, so far as that money in a bank can be specified. But if we accept “Wertvindikation” directly in Korean civil law, it can conflict with established legal theories about the enforcement of obligatory right. And it is not clear whether it is desirable to admit the proprietary right in all wrongful acquisition cases. So, it is necessary to protect the previous owner by legislation or another judicial measures.