제3자를 위한 계약의 해제 시 수익자의 지위 - 대법원 2021. 8. 19. 선고 2018다244976 판결 -

The Civil Act has adopted the theory of proprietary effect regarding the effect of rescission of contract. According to this theory, when the contract is rescinded the transferor has a claim to restore registration or possession to its original state on the grounds of unjust enrichment, and a claim for property rights based on the restored ownership. These two claims coexist as separate rights, and the subject matter of the lawsuit for each is also different. When the contract for third party is rescinded, the promisor has the right based on the two claims mentioned above. However, as the contractual relationship should be settled between the contracting parties, the promisor cannot claim the return of unjust enrichment from the beneficiary. Whether the beneficiary is a third party under the Proviso to Article 548(1) of the Civil Act must be reviewed before addressing the issue of the beneficiary's obligation to return unjust enrichment. If the beneficiary is a third party under the third party protection regulation, he/she cannot be held liable for the return of unjust enrichment. However, just because the beneficiary is not a third party under the above provision, the obligation to return the unjust enrichment is not immediately affirmed. The beneficiary, who is not a party to the contract, does not have the obligation to return the unjust enrichment. The beneficiary is not a party to the contract but he/she acquires rights directly from the contract, therefore he/she is not a person who has acquired new rights based on the legal effect arising from the rescinded contract. The beneficiary is not a third party under the Proviso to the Article 548(1) and the Supreme Court has previously ruled as such. However, the Supreme Court Decision in this case ruled that if the beneficiary acquires new interests before the rescission by forming the value relationship based on the basic relationship, he/she is considered a third party under the above provision and denied the promisor's claim for property rights against the beneficiary. However, even if the value relationship is established based on the basic relationship, the beneficiary is still the person who acquires rights directly from the contract and cannot be considered a third party under the above provision. Also, this case does not correspond to a case where the value relationship was established based on the basic relationship. The beneficiary has the right to take possession of the goods because he/she is not liable for the return of unjust enrichment. Therefore, he/she can refuse to return the goods to the premisor. The conclusion of the Supreme Court Decision is justified, but its basis is not.