처분된 친일재산의 부당이득반환 - 대법원 2011. 6. 10. 선고, 2010다40239 판결 -

Abstract

Property owned by pro-Japanese and anti-national collaborators' descendents as pro-Japanese collaborators' property came to be nationalized by the state pursuant to the enforcement of "the Special Act on Asset Confiscation of Pro-Japanese and Anti-national Collaborators to the State." As the descendents sold the land to a bona-fide third party to avoid confiscation the state filed claims for the return of the land sale price as unjust enrichment against the descendents. In such precedents, the Supreme Court has held that the descendents shall return to the state the whole price from the land sale and in doing so, the amount of transfer income tax and the resident tax payment incurred by the disposal of the land should not be deducted from the gains which should be returned to the state. Nonetheless, the Supreme Court's judgment for the total return of unjust enrichment against the pro-Japanese collaborators' property is not clear with regards to the establishment of unjust enrichment and the applicable scope of the return. The Supreme Court uses the term of the restitution for wrongs while the basis of unjust enrichment lies in equity. It may be misunderstood as if the precedent used the term of the restitution for wrongs pursuant to the non-unification theory. The general elements for establishing unjust enrichment such as revenue, loss, causation, and "without juristic reason for the enrichment" can be applied from the perspective of the unification theory. Within this context, the meaning of "without juristic reason for the enrichment" is abstract, and thus, the restitution for wrongs can be applied by categorizing the types of unjust enrichment in detail. Further, the monetary value of the sale price, interest, and damages in the case of delayed payment should be considered as belonging to the scope of the return of unjust enrichment since the beneficiary acted in bad-faith.