전용물소권의 인정여부에 대한 법리 재검토

This thesis is designed to establish a reasonable viewpoint about "actio de in rem verso". The actio de in rem verso is the right to claim the return of unjust enrichment to third party who received the benefit from the contractual relationship, except the parties to the contract. It has its origins in roman law. But It was changed, under the influence of a valuable concept and the legal theory by the time and the place. On the other hand, most scholars of our country and the position of the Supreme Court of Korea argue as follows: The actio de in rem verso should not be accepted in that it disrupts stable operation of korean civil law. Concretely speaking, actio de in rem verso destroys autonomous contractual structure of right and duty. Moreover it makes contracts for a security right (guarantee, mortgage etc.) meaningless and corrodes bankruptcy law. Last but not least, it substantially deprives the fundamental right of self determination in entering into a contract, the freedom of choice on contractual counterpart and the liberty of contractual terms-making. Taking these into account, actio de in rem verso should not be accepted if there is no special need and regulations, for example, clause 2 of article 747 of Korean Civil Law. But, such claims are not right. the actio de in rem verso should be discussed on condition that it does not bring about a normative collision with other articles and principles of the korean civil law. As a general principle of modern civil law, contract law and unjust enrichment law are systematically separated. And as a supplementary judicial of contract law, there is unjust enrichment law. From each of these separate systems, actio de in rem verso occupy the position of the nature of the return of unjust enrichment claims. And actio de in rem verso is recognized as a general regime to realize substantial equity between the parties. In this respect, actio de in rem verso must be considered, as the general requirements of unjust enrichment. Therefore in most cases of actio de in rem verso, it must be admited. In conclusion, in our civil law, actio de in rem verso should be considered positively. And in this regard, the attitude of Supreme Court of Korea should be changed.