소유물반환청구권과 부당이득반환청구권의 경합 여부와 과실반환문제

Abstract

The restitution of unjust enrichment may be brought against a person illegally acquiring any goods. Civil law also prescribes a legal relationship between a possessor and a person claiming recovery as §§201-203 of the Korean Code of Civil Procedure are viewed as an incidental right of claim for the right to claim the return of the articles owned(§213). With respect to this, it has been controversial weather the right to claim the return of the articles owned conflicts with the right to claim of the restitution of unjust enrichment, and if so, weather the return of the fruits can be claimed as provided in §§201-203, the incidental right of claim. In this regard, this article seeks to introduce legal theories and opinions regarding the dispute. Previous literatures claim that the scope of unjust enrichment to be returned by the illegal occupant of goods is based on §748. With respect to this, what I believe is that a possessor in good faith applies to §748① in terms of the scope of the return of value while the possessor applies to Article 741 in terms of the return of the original object. In contrast, a possessor in bad faith applies to §748② in terms of both the return of the original object and value. In fact, there is a disparity in the concept of good faith and bad ones under §201 and §748. The definition of both good and bad faiths is much narrower in the law of occupation than in the law of unjust enrichment. When the return of the original object is likely to be claimed when it comes to the unjust enrichment by performance in contractual relationship, the return of the object is under contract that stipulates the responsibilities of both parties until the termination of contract. In that case, no conflict arises between §213 and §741 but the restitution of unjust enrichment prevails. More specifically, a person enriched in good faith applies to Article 741 while a person enriched in bad faith applies to §748②. In contrast to the contract relationship that imposes the responsibility for the return of the original object, however, legal claims may beget a conflict between §213 and §741. In this case, there is a conflict between the §201, the incidental right of claim of §213 and §741(a person enriched in good faith) or §748② a person enriched in bad faith. Under this circumstance, the right of claim should be implemented, which may result in varied legal forces for each claim. With respect to the unjust enrichment not by performance in which a person is entitled to the return of the original object, §213 is in conflict with §741, and §201 and §741(person enriched in good faith) and §748②(a person enriched in bad faith).