영미법상 상태 변경의 항변에 관한 고찰

• 영문명: Studies on Defence of Change of Position under the English and the U.S law
• 발행기관: 원광대학교 법학연구소
• 저자명: 이혜리(Lee Hye Ri)
• 간행물 정보: 『원광법학』제30권 제3호, 242~279쪽, 전체 38쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2014.09.30

영문 초록

Assume the following fact that if plaintiff gave money to defendant under his mistake and without knowing plaintiff's mistake, defendant spent the money given by the plaintiff by going the fancy restaurant which he would have not gone otherwise. Can the defendant defense against plaintiff claiming in restitution of the money by arguing he already spent the money? In such situation, defendant under the English and U.S. law can argue "defence of change of position" ground on detrimental change of position against plaintiff's claim in restitution. This defense places the limitation on defendant's liability and justifies that law of restitution is an independent tool to levy the liability. This paper reviews definition, types of "defence of change of position" and related discussion of causation and fault. As a result of the review, "defence of change of position" plays similar role with "defense of remaining enrichment" under Korean law but it is more flexible in its application because it is based on equity. That is why it is hard to understand its concept but it can provide the tips to understand "defense of remaining enrichment" under Korean law in a way to fit for its purpose.

목차

Ⅰ. 서설

Ⅱ. 일반론

Ⅲ. 상태 변경의 유형

Ⅳ. 인과관계 및 신뢰

Ⅴ. 과책

Ⅵ. 결론

참고문헌

키워드

상태변경의 항변 부당이득 부당이득반환의 범위 현존 이익 항변 선의의 수익자 defence of change of position unjust enrichment restitution defense of remaining enrichment unjust enrichment by mistake