사인의 공법상 부당이득에 관한 소고

Abstract

As the role of benefit administration grows, research on the legal principles of unfair enrichment under public law is urgently needed. In relation to this, there are many cases where individual laws are the basis for claiming the return of unjust enrichment under public law. Representative examples include the Subsidy Act, Public Finance Recovery Act, Social Security Benefits Act, National Health Insurance Act, and National Property Act. As a result of reviewing these individual laws, it was confirmed that unjust enrichment of individuals under public law is governed by very different legal principles from unjust enrichment under civil law. These laws adopt methods that are completely different from those for unearned profits under civil law in terms of the scope of return and method of compulsory execution. The problem is that individual laws do not have provisions regarding the return of unjust enrichment under public law. First, the question is whether there should be a legal basis according to the principle of legal compatibility of administration. In my opinion, the claim for return of unjust enrichment under public law is an important matter with an infringing nature, so I believe there should be a legal basis. At first glance, civil law can be the basis, but it is insufficient as a basis for a public law solution, so legislative action is believed to be necessary. Second, the question arises as to whether the general principles of administrative law can be applied. Considering that the general principles of administrative law apply when recovery measures are carried out as administrative dispositions, it is believed that the general principles of administrative law should be applied even when recovery measures do not have the nature of administrative dispositions. Even after examining it from a legal perspective, we came to the conclusion that it is appropriate for these principles, which have constitutional status, to be applied. Third, it is considered appropriate that the scope of return is not determined by civil law, but by the results of applying the general principles of administrative law, especially the principles of proportional compensation and trust protection. In order to clarify the application of these public law principles, it is considered appropriate to have a general legislative provision. Lastly, it is believed that procedural protection, such as prior notice, hearing opinions, and presentation of reasons, should also be provided. It was judged that legislative action was also necessary for this purpose. Considering the principle of public law that public interest should be considered top priority, the legal principles of unjust enrichment under public law should be different from the legal principles of unjust enrichment under private law. The conclusion of this study is also the same. I hope that general provisions will be created as soon as possible so that unreasonable conclusions are not reached due to legislative gaps.