미국 부당이득법의 과거와 현재 -제1차 Restatement부터 제3차 Restatement까지-

This article compares past and present of the US Law of Unjust Enrichment. It will principally summarize the structure(the general principles, liability in restitution, remedies, defences to restitution) and key points of the Restatement (Third) of Restitution & Unjust Enrichment. The General Principles: the first and central principle is that “[a]person who is unjustly enriched at the expense of another is subject to liability in restitution.” A corollary principle applies that “[a] person is not permitted to profit by his own wrong.” Whether the defendant’s conduct is “wrongful” will ordinarily turn on principles outside the scope of the Restatement. The Restatement also makes clear that restitution may be legal or equitable or both. A claimant entitled to a remedy for unjust enrichment need not demonstrate the inadequacy of available remedies at law. The term “restitution” connotes both liabilities and remedies for unjust enrichment. The term does not connote only a remedy. Liability in Restitution: The law of restitution and unjust enrichment sometimes provides an independent ground for liability, for example, in cases of mistake, and often provides a supplemental or alternative ground for liability, for example in cases of tort or breach of contract. The Restatement has five chapters on liability: Transfers Subject To Avoidance; Unrequested Intervention; Restitution And Contract; Restitution For Wrongs; And Benefits Conferred By A Third Person. Under these chapters, forty-four sections address particular liability issues. Remedies: The Restatement provides a set of remedies other than compensatory damages for harm. They concentrate on what the defendant has received rather than what the plaintiff has lost. Defenses to Restitution: The Restatement’s last part includes the defenses that the recipient was not unjustly enriched, equitable disqualification (unclean hands), passing on and rights of third persons, change of position, bona fide purchaser, bona fide payee, value, notice, and limitation of actions and laches.