부당이득의 보충성에 대한 서론적 고찰-비교법적 고찰을 기초로-

This study challenges subsidiarity of unjust enrichment and provides solution for Korean Civil Act system based on comparative studies. Korean Civil Act defines general requirement of unjust enrichment ambiguously under Article 741 by stating that “A person who without any legal ground derives a benefit from the property or services of another and thereby causes loss to the latter shall be bound to return such benefit.” So, the understanding of conflict between unjust enrichment and right of claim in other legal system can be issued. To be more specific, compensation for unfair profits gained by the infringer is problematic because whether it is narrowly acknowledged when there is no right of claim in other legal system, or it could be admitted even when other right of claim can exercise. This is so-called Subsidiarity of Unjust Enrichment. Compensation for unjust enrichment can be understood as an independent statutory claim under Korean legal system and cases. However, in the case of subsidiarity of unjust enrichment can be admitted complementally when right of claim in other legal system cannot establish or exercise. I think this issue is crucial part to find origin of unjust enrichment, so discussion of it shouldn’t be cut short. This is because subsidiarity of unjust enrichment is connected to application scope of unjust enrichment status, and could be extended to the question of what authorization can invest. In this context, there has been detailed theoretical studying ranging from concept of subsidiarity to its recognition in Germany, France, and Japan legal system which affects Korean Civil Act. I think it will be really helpful for Korean legal system to review these foreign legal systems on the grounds that study regarding subsidiarity of unjust enrichment in Korea is insufficient compared to others. For this reason, this study suggests that Korean Civil Act inherited significant point from Germany Civil Act and Japan Civil Act about subsidiarity of unjust enrichment through examining different countries discussion. This study examines theories and court cases about subsidiarity of unjust enrichment, and consider the validity of different perspective for this. I conclude to the issue like this: First, although subsidiarity of unjust enrichment can be understood in the different ways based on several foreign legal systems, making a division into absolute principle of subsidiarity and relative principle of subsidiarity is more accord with Korean Civil Act and its legal system. Secondly, there is no positive opinion about absolute subsidiarity in the field. Rather, majority opinion divide into relative subsidiarity and negative opinion for subsidiarity itself. On the other hand, there is many errors in Korean Civil cases since absolute subsidiarity was adopted in written studies, but court judged relative subsidiarity and sometimes they seemed confused understanding of premises for subsidiarity of unjust enrichment Therefore, I conclude that unjust enrichment in Korean Civil Act take its own independent requirement and effect like other remedies. Then, I lead to conclusion that subsidiarity of unjust enrichment shouldn’t be admitted in Korean Civil Act system in order to make groundwork for explaining other unspecific right of claim and its competition. This conclusion is simple consideration for subsidiarity of unjust enrichment. If there is conflict between unjust enrichment and other rights, more study specifying substantial law should be conducted. This will be my future study.