미국 부당이득법 - 제3차 부당이득법 리스테이트먼트를 중심으로 -

Unjust enrichment in the Anglo-American Law has not been developed as an independent legal principle. This does not mean that it did not identify a sort of remedy for unjust enrichment. According to the Roman law tradition, It used a general assumpsit to grant remedy that we would now classify as restitution. However, it was not an independent source of liability based on unjust enrichment, but quasi-contract or constructive trust. Since that, the modern Anglo-American Law has moved to establish unjust enrichment as an independent ground for judicial decision making like contract law and tort law, repudiating the traditional explanation of restitution liability. Especially, the US law of unjust enrichment has taken the lead in this movement by publishing the two Restatements which concern restitution and unjust enrichment. In 1937, the American Law Institute(“ALI”) published the Restatement (First)of the Law of Restitution which attempted to restate accumulated unjust enrichment cases based on the unified principle, combining the legal and equitable side of restitution. But it failed to make an independent principle for unjust enrichment because it included the preexisting law of quasi-contracts and of constructive trusts within the single Restatement. The Restatement (Third)of the Restitution and Unjust Enrichment of 2011 has received a favorable evaluation in respect of that it has shaped the contours of restitution and unjust enrichment, not only describing a principle of liability for unjust enrichment, but also organizing and classifying numerous cases in consistent ways. This article aims to provide an implication for the Korean law of unjust enrichment by looking into the US law of unjust enrichment, especially the Restatement (Third)of the Restitution and Unjust Enrichment.