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A Study on ‘Actio De in Rem Verso’ and the Right to Demand Reimbursement of Expenses based on ‘Negotiorum Gestio’ in Korean Civil Code Article 739 - Centers on Supreme Court Decision 2011DA17106 -

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2020, 8(3), pp.283-320
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : July 23, 2020
  • Accepted : August 25, 2020
  • Published : August 31, 2020

Pu, Dong-Ho 1

1고려대학교

Candidate

ABSTRACT

The purpose of this study is to establish a reasonable viewpoint about ‘actio de in rem verso’ and a solution of conflict ‘actio de in rem verso’ with the Right to demand reimbursement of expenses based on ‘the management of another's affairs(negotiorum gestio)’ in Korean Civil Code Article 739. To pursue this purpose, I analyzed Supreme Court decision, 2011DA17106 case. The ‘actio de in rem verso’ is the right to claim the return of unjust enrichment to third party who received the benefit from the contractual relationship, except the parties to the contract. This is the problem about unjust enrichment in relations among the three persons. The most scholars of our country and the position of the Supreme Court of Korea argue as follows: The ‘actio de in rem verso’ should not be accepted in that it disrupts fundamental principle of contract law. But such claims are not right. There were cases in favor of ‘actio de in rem verso’ such as ‘Boudier case judgement,’ ‘Bulldozer case judgement’ in France and Japan. As a general principle of modern civil law, contract law and unjust enrichment law are systematically separated. From each of these separate systems, ‘actio de in rem verso’ occupys the position of the nature of the return of unjust enrichment claims. In this respect, whether ‘actio de in rem verso’ will be accepted or not must be judged by the general requirements of unjust enrichment. There is a problem concerning establishment of the relationship between ‘actio de in rem verso’ and right to demand reimbursement of expenses based on ‘negotiorum gestio’. Considering the fact that ‘negotiorum gestio’ has a systematic importance as an independent institution different from unfair profits in terms of requirements and effects, aforesaid two institutions can be accepted in case satisfying requirements respectively. Subsidiarity of unjust enrichment should be denyed. The Supreme Court ruled that 2011DA17106 case didn’t meet the requirements of unjust enrichment in the Supreme Court decision of 2011DA17106 case. But The Supreme Court decision should be reconsidered for acceptance of ‘actio de in rem verso’.

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