DCFR 부당이득편에 관한 고찰 /

Abstract

Unjustified Enrichment law as the Principles of European Law has some structural and substantial characteristics. Firstly, they opted for a unitary approach, dependent on the four elements of (a) enrichment, (b) disadvantage, (c) attribution of the one to the other, and (d) absence of legal justification. Secondly, "unjustified enrichment las" within the meaning of the Principles covers a wide range of situations: (a) Performances to which the recipient, for want of a legal basis, was not entitled, (b) enrichment which were rendered under fraud, threat or duress, (c) un-obligated improvements of goods belonging to another, (d) wrongful appropriation or exploitation of another's property or personality rights and, (e) discharges of another's debt. Thirdly, the Unjustified Enrichment law as understood here does not cover the reversal of enrichments for which there was a valid legal basis at the time of acquisition. The restitution of benefits conferred in performance of a contract which is brought to an end by exercise of a right of termination, e.g. on grounds of non-performance, or cancellation or withdrawal as may arise under a consumer contract, etc, are the subject-matter of contract law. Fourthly, The law of unjustified enrichment, as conceived in this Book, belongs to the law governing extra-contractual obligations, where the rights and obligations of the parties arise by operation of law and are not derived from the provisions of some juridical act between them. Lastly, unjustified enrichment law in this Principles is not a mere subsidiary instrument. If the requirements of Article 1:101 are fulfilled it allows for a free concurrence of actions with claims arising out of other legal bases.