不當利得의 體系 - 독일 부당이득법 입법과정을 통해 바라본 한국 부당이득법 -

Abstract

The condictio whose name dates back to legis actio per condictionem is a strictly legal action against individual for certam pecuniam dari or dari aliam certam rem. It provides a uniform action with a single form for certain sum of money or specific things and contains condictio indebiti, condictio ob turpem vel iniustam causam, condictio ob causam datorum, condictio causa data causa non secuta and condictio furtiva. It does not base on the tort law, but derived from the naturalis aequitas. The naturalis aequitas is the equity rule, which is developed by the Greek philosophy, Pomp. D. 12,6,14 : Nam hoc natura aequum est neminem cum alterius detrimento fieri locupletiorem. In Roman law, the action to reclaim enrichment obtained by performance (Leistungskondiktion) was of primary importance and the Roman jurists regarded it as the basic form of condictio. It is noteworthy that they knew the condictio furtiva as a specific action to reclaim enrichment obtained by interference with private property (einzelne Eingriffskondiktion), otherwise a general action to reclaim enrichment obtained by interference with private property (allgemeine Eingriffskondiktion) in German modern sense. Despite the dissolution of the classical condictio in a group of independent right of claims in the Justinian law, the equity rule was maintained as the basis of condictiones. In the 19th century, Friedrich Carl von Savigny established the theory of condictio, which assumes that the condictio is due to a common principle and that the uniform fact of the enrichment can be seen in “causeless enrichment of others from our properties (grundlose Bereicherung des Andern aus unsrem Vermögen)”. This is the starting point of the theory of unity. Franz Philipp von Kübel wrote with a faithful image of the Roman legal specific condictiones (Spezialkondiktionen) the partial draft of the law of unjust enrichment of the German Civil Code. He saw the basis of law of unjust enrichment in the shifting of properties under the influence of the theory of Savigny. The first draft accepted Kübel’s basic concept. Kübel and 1st Commission opposed the cases of enrichment through willful performance to enrichment without the will of the disadvantaged person. However, the Editorial Committee of the 2nd Commission abandoned the system of specific condictiones of Roman law and established a general clause by taking consideration of simplicity and clarity of the 2nd draft. Although it adhered strictly to the uniform basic principle of naturalis aequitas and focused on the shifting of properties. According to the theory of separation, which was developed by Walter Wilburg and Ernst von Caemmerer, the various condictiones do not go back to a uniform principle. Unlike the Leistungskondiktion, in the case of Eingriffskondiktion as a mainly applicated case of action to reclaim enrichment obtained by non-performance (Nichtleistungskondiktion) it depends on the wrongful act (widerrechtliche Handlung), the interference (Eingriff) with assigned content (Zuweisungsgehalt). But to the contrary, the historical development until the 19th century as well as the legislative materials on the German Civil Code demonstrate that the legislator has written on the German Civil Code under a uniform dogmatic principle of the rules on unjust enrichment. The German legislator neither intended to regulate the Leistungskondiktion and Nichtleistungskondiktion on different bases nor to determine their facts dissimilarly. The rules relating to unjust enrichment in the Korean Civil Code and their interpretation are affected by the doctrines of German law, which has a strong influence on the Korean civil law. This article aims to explore the nature and system of the Korean law on unjust enrichment specifically concerning historical development, beginning from Roman law, and legislative process of the German Civil Code.