쌍무계약의 청산에 있어서 급부의 반환 법리 - 원상회복과 부당이득 법리를 중심으로

A Study of the Rendition in Case of Clearing off of a Bilateral Contract -Centered on Retrieval and Unfair Profit -

&nbsp;&nbsp;The most important normative laws in clearing of a bilateral contract are two which are a claim of retrieval by rescission and a claim for rendition of unfair profit by legal flaw of cause. Korean civil law, in the case of contract expiration by invalidity or cancellation, there has no regulation against the legal means for clearance but applies the law of unfair profit. Clearing off by rescission can&quot;t help depending on this law because it regulates retrieval as a duty at the time of rescission of a bilateral contract. Therefore, this causes arguments about what the duty of rendition by rescission gets the legal quality. The theory of direct effect which is major argument and precedent regard the retrieve as unfair profit that comes from contract expiration by rescission.<BR>&nbsp;&nbsp;However, counter-arguments against these major argument and precedent are presented with two ways. One is the opinion that negates contract expiration by rescission and then considers that original contract should be turned into clearing off. It considers retrieve as a special rescission. The other pinion, which adapts German civil law concerned with the explanation on the form of unfair profit, thinks that retrieval for rendition of benefit and rescission by invalidity or cancellation of a bilateral contract is the system for contract clearing and then considers that the effects of the two parties should be dealt with simultaneously. Therefore, the issue about what principle to follow for rendition of benefit should be considered for the case of clearing of a bilateral contract.<BR>&nbsp;&nbsp;In this paper, the relationship between a claim for retrieval by rescission and rendition of benefit by unfair benefit, which has based on rendition of benefit having been fulfilled, were examined first. And then, this paper researched what principle contra benefit in rescission of a bilateral contract should be dealt with.