불법원인급여 심사기준에 대한 고찰

Abstract

Performance for Illegal Cause is a special case of Restitution & Unjust Enrichment which prepared on the basis of fair and justice. It is inherited from ancient times and is taken by various countries around the world, but its application and operation is not easy. Especially, modern nations of the 18th-19th century put in the absolute guarantee of private property rights and privatautonomie, but c​ontemporary nations after the mid-20th century are based on 'the Principle of Social States(Sozialstaatsprinzips)' and 'the principle of the Rule of Law(Rechtsstaatsprinzip)'. So the nations deeply intervened in the field of autonomies through various laws. Therefore it was not easy to resolve and determine meanings and ranges of illegality, for reasons that the prohibition of law became numerous. Property rights should be commensurate with public welfare. Therefore it is not justified to selfish acts that abuse rights or ignore the community benefit. So that the illegality provided for in Article 746 of the Civil Act should be considered the same as the Anti-Social Order set forth in Article 103. And in a specific application, it is appropriate to judge in the direction of reducing the scope of illegality. On the other hand, Performance for Illegal Cause derived from adjective law or relief system, but it has been recognized through Article 746 of the Civil Act which is substantive law, and it has been pointed out that it is necessary to make a practical judgment against the return of goods or not. Therefore, a more detailed and sophisticated logic structure than the past is necessary. However, overseas, it is a situation that has already developed forfeiture-theory, trying to systematize law of Restitution and Unjust Enrichment. Also, many special forfeiture laws are established in South Korea according to the international treaties, etc., Performance for Illegal Cause is integrated as well, and a systematic examination standard is necessary. Also, many special forfeiture laws are established in South Korea according to the international treaties, etc., Performance for Illegal Cause is requesting integrated and systematic standard. Therefore, in this paper, we propose that the proportionality principle will be an examination standard with complete logical completeness, and we propose a concrete application standard.