삼각관계에서의 부당이득 법률관계와 질권자의 부당이득반환의무 유무 - 대법원 2015. 5. 29. 선고 2012다92258 판결 -

Abstract

This paper studies the relations among the contracting parties and the third party in unjustified enrichment cases, focusing on Supreme Court 2012Da92258, May 29, 2015(hereinafter “the Case”). In the Case, the pledgee had received money from the third debtor, which exceeds the amount of money the debtor/pledger owed to him. The pledgee reversed the excess to the debtor/pledger. Later the contractual relations between the debtor/pledger and the third debtor was found to be void. The third debtor claimed that the pledgee should bear the obligation to reverse all of the money paid by the third debtor. The main issue of the Case is whether the pledgee bears the obligation to reverse the enrichment to the third debtor. The Supreme Court held that the pledgee does not bear such obligation, applying the doctrine of unjust enrichment previously employed in cases where a debtor directs (“anweisen” in German) the third debtor to perform his obligation to the creditor. The conclusion the Supreme Court reached in the subject case seems reasonable, as the reasoning behind the “anweisung” cases can be applied to the Case. In both cases, the third party’s performance discharges both the debtor and the third party from their liabilities; and the money or asset can be theoretically deemed as transferred from the third party to the debtor, and from the debtor to the creditor. As such, the grounds for not accepting unjust enrichment claim in “anweisung” cases can be applied to the Case. The Supreme Court also held that the pledgee in the Case had not obtained “profit in a practical sense,” because the pledgee had reversed the excess to the debtor/pledger. In other words, the Supreme Court applied the doctrine of “profit in a practical sense” here. In my view, however, expanding the scope of the doctrine to the Case seems questionable. The meaning of “profit in a practical sense” remains unclear, and such doctrine cannot provide proper standard in deciding whether the enriched person bears the obligation to reverse the enrichment. The relevant facts of the Case can be understood as follows: the third debtor was directed to pay the money (including the excess) to the pledgee by the pledger, or the debtor/pledger gave expost facto approval to the third debtor’s act by receiving the excess. As such, the doctrine of unjust enrichment in “anweisung” cases can be applied to the excess paid to the pledgee, which draws the conclusion denying the pledgee’s obligation to reverse the enrichment.