민법상 부당이득 반환범위에 관한 소고 – 민법 제747조, 제748조 해석론을 중심으로 -

This Paper is mainly intended as an investigation of the provisions concerning a restitution of unjust enrichment under Civil Act §§ 747-748. According to § 747 (1), it is defined as “if the person enriched is unable to return the Object itself which he has received, he shall return the vlaue of the object.” And according to § 748, it is defined as ‘a person enriched in good faith shall be liable to act as set forth in Article 747 to the amount that he still possesses of such benefits(paragraph 1),’ and ‘a person enriched in bad faith shall return the benefits received by him together with interest, and if there has been any damage, he shall be bound also make compensation (paragraph 2).’According to these provisions, the return of the original is a principle, the return of the vlaue of the object is the exception. Well, it is conflict that whether Article 748 is the general provisions appling to not only a return of a value of a object, but a return of the object itself. In my opinion, § 748 (1), is not the general rule, and a person enriched in good faith shall return the object itself by § 741, and a value of a object by § 748 (1). But a person enriched in bad faith return both a object itself and a value of a object by § 748 (2). And I expand the interpretation of the scope of the return of the beneficiaries of the malicious and range of the return of the beneficiary of good faith.