부당이득에 있어서 이득토출책임의 법리와 그 시사점 -반환범위에 있어 손해중심에서 이득중심으로의 전환-

This study gives an overview of the Anglo-American unjust enrichment and makes a deep research on the theory of disgorgement considered as the cornerstone of the Anglo-American unjust enrichment theory. When the disgorgement applies to the case, the recipient should give up the benefit attributable to the underlying wrongs regardless of whether the claimant actually suffered any loss. The aim of the disgorgement is said to be the deterrence of wrongs. The disgorgement has been evaluated as an effective remedy in the case where the defendant acquired the benefit exceeding the loss of the victim through wrongs or the claimant found it difficult to establish his/her actual loss. In U. K, the legal theory of disgorgement has been developed by the case law and its application to the case has been on the increase. Likewise, the disgorgement has been an established remedy for unjust enrichment cases in U. S. and the Restatement (Third) of restitution and unjust enrichment stipulates it in a detailed manner. * Associate Professor, Seoul National University School of Law & Ph. D. in Civil Law. The Anglo-American unjust enrichment theory including the disgorgement provides an insightful idea that in assessing the scope of the obligation of the recipient, the changeover from loss-based assessment to gain-based assessment can be more appropriate. Since unjust enrichment is so designed that the recipient should return his gain unlike torts which renders the tortfeasor compensate the victim's loss, such changeover can correspond to the intent of unjust enrichment and the disgorgement can offer significant implications on our theory of unjust enrichment. First of all, la règle du double plafond(the rule of double ceiling) should be abolished. Under la règle du double plafond, the amount of victim's loss can play a role in setting the ceiling to the scope of obligation of the recipient. However, this rule has turned out to be based upon the unreliable legal ground and the French civil law, the origin of this rule, officially abolished the rule. In assessing the scope of obligation of the recipient, it is desirable to be based upon the profit of the recipient rather than the loss of the claimant as the theory of disgorgement elucidates it. Secondly, it is reasonable to say that the introduction of the remedy of disgorgement can be considered affirmatively. Given that the Korean trust code stipulates the Korean version of restitution for equitable wrongs and other codes stipulate the remedies friendly with the idea of disgorgement, it can be submitted that the disgorgement is acceptable rather than conflicting with our legal system. Legal justifications for adopting the disgorgement to our system can be made in two ways: the necessity of deterrence of wrongs and high-level protections of particular legal interests. Considering Korean legal realities where the torts have not been a successful remedy to deter the wrongs due to the fact that the amount of compensation has been relatively low, the disgorgement can be an effective remedy for realizing individually tailored justice in the field of unjust enrichment.