미국 부당이득법의 개관

An Introduction to American Law of Restitution and Unjust Enrichment

We see a worldwide trend of legal harmonization these days, especially increased influence of Anglo-American law. This is also true with the law of restitution and unjust enrichment, the complexity and indistinctness of which has long prevented comparative study in this area. But the publication of “Restatement (Third) of Restitution and Unjust Enrichment” in 2011 helped ease the problem. This article aims to review American law of restitution and unjust enrichment focusing on this Restitution and conduct basic comparative study between Korean and American legal systems in this area. The Restatement comprises 4 part and 70 articles. Each part deals with introduction, liability in restitution, remedies and major defenses. Firstly, liability in restitution is categorized into 5 groups: transfer subject to avoidance, unrequested intervention, restitution and contract, restitution for wrongs, and benefits conferred by a third person. Remedies are classified into 2 groups, which are restitution in money and specific restitution. Restitution in money is determined by the amount of enrichment, which differs with the existence and degree of fault on the part of the recipient, who can be innocent, misconducting, or responsible for the enrichment. In particular, the recipient who has committed conscious wrongdoing which is the gravest form of misconduct, are subject to the liability to disgorge profits which include consequential gains and are not limited to his loss. Specific restitution means the rights in rem acknowledged within the limits of restitution in money and includes such remedies as rescission and restitution, constructive trust, equitable lien, and subrogation. Major defenses include recipient not unjustly enriched, equitable disqualification, change of position, bona fide purchaser and payee and limitation of actions and laches. Those topics that could result in productive comparison between Korean and Amaerian law of restitution and unjust enrichment can be classified into such groups as system and structure, requirements and effects of the liability, and protection of third party. Regarding system and structure, comparison might be conducted with regards to the relation between the law of restitution and other areas like contracts or torts. The issue of classification of unjust enrichment could also be considered in this context. With regards to the requirements of the liability, we need to compare the meaning of unjustness and the concept of benefit and enrichment. Especially, it is important to examine the opposing idea of ‘unjustified enrichment’ and ‘the equitable concept.’ Concerning the effects of the liability, those issues like substitution and transfer of the object, restitution of the “Gewinn”, limitation of the liability to the remaining benefit for the good faith recipient could each be compared to constructive trust, disgorgement, defense of change of position in American law. On the whole, even though American law of restitution and unjust enrichment is very different from that of Korea, the function is very similar with each other. However, there are disparities indeed that cannot be ignored, some of which suggest valuable ideas that can help interpretation and revision of Korean law of unjust enrichment.