미국에서의 위법하게 취득한이익에 대한 책임의 규정 체계에대한 서론적 고찰- 제3차 원상회복법 리스테이트먼트규정을 중심으로 -

The issue to clarify whether to admit malevolent intervention in another’s affairsor to elucidate its legal nature has been problematic in particular in our civil coderelating to the issue to redeem unlawfully acquired profits, for this matter, there havebeen no unified opinion to the present day. Of course, domestic scholars are awareof the necessity of solving this problem, but we have not seen a unified viewpointon the direction to solve this problem. The reason for this is not only due to thefact that there is no prescriptive stipulation for malevolent intervention in another’saffairs on our civil code, but also the difference of viewpoint of scholars about theintent of existing unfair benefit system or illegal activity system and such differenceof viewpoint seems to be greater in determining the actual problem of the issue ofredemption for the profit, that is, in effect, how much the beneficiary should returnto the loser the excess profits it has acquired through its capability. This problem ultimately needs to be resolved through legislation. However, it ispractically impossible to solve this problem under our civil code, therefore, it isnecessary to positively refer to the viewpoint inherent in the article 51, RestatementThird : Restitution and Unjust Enrichment in the United States and the legalprinciples of United States’ precedent reflected on the same regulation. Specifically, itis necessary to positively refer to four considerations to determine the net profits having been admitted in the legal principles of United States’ precedent indetermining the scope of return of the defendant’s benefit to the plaintiff, which is asubstantive problem of unlawfully acquired profits. we hope to see the academicresearch in depth and active reflection on the practice of this issue in the future.