In general, Article 746 of the Korean Civil Code is understood as a provision that is integral to Article 103. These two regulations have something in common: they have the purpose of preventing anti-social acts and have the function of establishing m...
In general, Article 746 of the Korean Civil Code is understood as a provision that is integral to Article 103. These two regulations have something in common: they have the purpose of preventing anti-social acts and have the function of establishing moral norms as legal norms. However, Article 746 is not a regulation that broadly excludes all claims for refund of wages that are socially condemnable; it is only a regulation that excludes the right to claim refund of unfair profits. Article 103 of the Korean Civil Code can be said to act as a limiting principle of private autonomy or as a practical principle of public welfare, an ideology that governs the entire legal system. Therefore, it cannot be said that the scope of application of these two regulations is exactly the same.
The historical meaning of Article 746 of the Korean Civil Code goes through the Japanese Civil Code, and there is a legislative background that inherits the formal framework of the German Civil Code and the substantive significance of the French Civil Code. In other words, Article 387 of the draft Japanese Civil Code(1886) written by French civil law scholar Boissonade stipulated illegal cause benefits. The main text of this regulation stipulated the return of benefits due to ‘cause illicite’, and the proviso stipulated that if the cause of such illegality existed in the beneficiary, the claim for return would be rejected. The Roman law's right to recover unjust enrichment based on immorality(condictio ob turpem causam), which can be said to be the historical origin of illegal causes of benefits, was a limited system that excluded claims for the return of benefits received as a result of morally unscrupulous acts.
However, there was a distortion in Justinianus' code that went beyond immoral acts to include violations of mandatory laws. Moreover, the German Civil Code stipulates the invalidity of not only acts that violate good morals(gegen die guten Sitten) but also acts that are contrary to the provisions of the law(Articles 135 and 138), and acts of illegal causes. It went through a historical change that defined the sign in the same way(gegen ein gesetzliches Verbot oder gegen die guten Sitten). The current Japanese Civil Code Article 708 succeeded Article 817 of the German Civil Code, and Article 746 of the Korean Civil Code was also stipulated as the same mark of conduct. Illegal causation benefits were distorted as their scope of application was defined broadly during the compilation of the Roman Code of Law and the modern civil code, especially the German Civil Code.
Uniformly rejecting claims for return of unjust enrichment on the grounds that the beneficiary has illegality results in reflexively acknowledging the attribution of such benefits to the beneficiary. This leads to the unreasonable result of not recognizing the return of benefits paid under an invalid contract and fixing it as is. Furthermore, uniform recognition or exclusion of claims for return of unfair profits is possible only when the cause of social criticism lies with one party, the payer or the beneficiary. However, in reality, in many cases, both parties have immoral causes. In some cases, there are cases where blame is stronger on the beneficiary than on the payer. Nevertheless, rejecting refund claims based solely on the blameworthiness of the payer is far from fairness, which is the basic philosophy of the unfair enrichment system. The meaning of illegality as stipulated in Article 746 of the Korean Civil Code should be narrowly interpreted as immoral and unscrupulous cases. Furthermore, deleting this provision itself from the Civil Code would be a way to fundamentally eliminate the irrationality of the illegal cause benefit system.