일본 메이지민법 부당이득법상의 기본개념의 형성 (Basic Concepts Formulation of Unjust Enrichment in the Meiji Civil Code)

서지정보

· 발행기관 : 한국민사법학회
· 수록지 정보 : 민사법학 / 68권 / 461 ~ 492페이지
· 저자명 : 박세민

초록

The provisions concerned with “Unjust Enrichment” in Meiji Civil Code accepted many rules and concepts from the Japanese Former Civil Code Draft which was influenced by the French Civil Code. During the process of legislation, however, the Japanese Unjust Enrichment underwent considerable changes under the influence of German Unjust Enrichment, not only in the forms but also in the basic concepts.
The Meiji Unjust Enrichment adopted the concept of “Legal Ground(法 律上 原因).” It was intended to replace the old concept, “Unjust Ground”, which was based on equity theory of natural law. As restoration limit of a restitutor in good faith, it set a rule of returning the remaining gain. In contrast, a bad faith restitutor should recover the accepted value adding interest and compensation for damages. These rules were accepted to the Korean Civil Code in similar ways.
Since the current understanding of most of the concepts related to Unjust Enrichment remains still vague and abstract compared with other fields, it is significant to go into the formulation history of each basic concept. Therefore, it would be particularly meaningful to keep analysing the concepts of Meiji Unjust Enrichment in order to understand and apply the rules properly.

영어초록

The provisions concerned with “Unjust Enrichment” in Meiji Civil Code accepted many rules and concepts from the Japanese Former Civil Code Draft which was influenced by the French Civil Code. During the process of legislation, however, the Japanese Unjust Enrichment underwent considerable changes under the influence of German Unjust Enrichment, not only in the forms but also in the basic concepts.
The Meiji Unjust Enrichment adopted the concept of “Legal Ground(法 律上 原因).” It was intended to replace the old concept, “Unjust Ground”, which was based on equity theory of natural law. As restoration limit of a restitutor in good faith, it set a rule of returning the remaining gain. In contrast, a bad faith restitutor should recover the accepted value adding interest and compensation for damages. These rules were accepted to the Korean Civil Code in similar ways.
Since the current understanding of most of the concepts related to Unjust Enrichment remains still vague and abstract compared with other fields, it is significant to go into the formulation history of each basic concept. Therefore, it would be particularly meaningful to keep analysing the concepts of Meiji Unjust Enrichment in order to understand and apply the rules properly.

참고자료

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