부당이득법의 인과관계와 법률상 원인－ 「편취금전에 의한 채무변제」에 관한 대법원판결을 예시로 －

The Supreme Court of Korea has recently rendered its decision to clarify its attitude towards the right to restitution for unjust enrichment in a case where defrauded money was used to discharge of an obligation. A creditor who received any defrauded money from a defrauder-debtor must repay the amount received to the defrauded, only if he knew the fact that the money had been defrauded or did not know it because of his own gross negligence. This is due to the fact that his enrichment no longer stands as a legitimate explanatory cause. Previously, the Court has accepted the concept of ‘pass-through' or ‘bypass' of property in non-cash transaction. Therefore, now, under the Korean law of unjust enrichment, it possibly may not be fruitful to attempt to establish the connection between the enrichment and the impoverishment by analyzing to whom the ownership of money belong. Since money represents the very value itself, it is not of great importance to whom the money is under ownership. Even if the ownership of money belongs to a certain person, it does not mean that the causal relation is broken. The problem is, then, how to satisfactorily explain that the enrichment of the creditor, who was legitimately paid for an obligation of the defrauder-debtor, is ‘without a cause of action' under the law. Considering the fact that the recipient-creditor's good faith or reliance ought to be protected under the Korean civil law, requiring the defrauded to prove ‘bad faith or gross negligence' on the part of the recipient-creditor as a requirement for successfully making a restitutionary claim seems appropriate and compatible with other rules in the Korean Civil Code.