不當利得에서 利得의 개념과 現存利益의 판단기준

Abstract

It has been stressed that in the law of enrichment the scope of return of the enriched has to be calculated by the remaining at the hands of defendant, in comparison to the rule of torts law. So it is understood that the enriched fulfills his duty by returning the remaining at the time of return. It means that the remaining has place at the center of enrichment law. It has its ground at the so called 'account theory', which means that the enrichment is simply the gap of wealth between the time of enrichment and return. But the viewpoint that the enrichment to be returned is the object itself that he acquired at the time of enrichment, regard as an exception the return of the remaining. The system of our civil code, which rules the return of the acquired object as a principle and in case that the enriched did not know the absence of justification the duty of defendant is reduced to the remaining, backs up this position. So the rule of return of the remaining is supposed to be interpreted more strictly. Rooted on this position I dealt with some practical issues. The defence of the enriched on the change of position needs more comprehensive approach under consideration of risk allocation happening in the process of restoration of unjustly transferred wealth. And the position of the court that at the enrichment of money the remaining of the acquired should be presumed, is analysed positively. Finally the reduction of return for an incompetent person should consider the harmony with the security of transaction.