강행규정 위반의 거래와 불법원인급여

A couple of cases introduced in the opening of this article deal with illegality defence in case of contract to pursue the prohibited purpose by diverse acts. That cases declare that illegality of Art. 746 of Korean civil code have the same meaning as public order of Art. 103. I insisted that this statement emphasized by court be abolished. The meaning of illegality of Art. 746 in case of contract against acts should be decided under extension of criteria to judge if paragraphs of acts prohibiting certain contracts are compulsory or not. The first standard of this judgement is if the economic interest of trade should be revert to the claimant. In the context of illegality it means to endure unjust reversion for achievement of legislation reason. So we must apply a stricter standard for unjust movement of property. Besides the exceptional degrees of unmorality and consideration for safety of trade will be criteria. Even though through this criteria reversion of goods will be decided, the unjust enrichment knows permission of return or not, that is choice of ‘all or nothing’. So in case of illegality defense the claims based on torts have to be accepted generously to get a flexible results. Finally for the grounds of illegal defense I suggested new perspectives. The one who performed based on illegal contract can be regarded as bearer of risk. And the court can take a stance of ‘status quo’ if it regards unclear the condition of justice to be recovered.