不当利得返還における「現存利益」

概要

論文の詳細を見る
A person who gains a profit without a legal cause commits "the unjust enrichment" in Civil Law. He is required to recover the original condition by compensating the other party for his loss. The profit to be restored, however, is limited to "as much as existing" when he is asked for compensation, provided that he made the profit in good faith. Good faith means that he received the goods or money believing that he was entitled to do so. Money spent for amusements is commonly considered "not existing" so that he doesn't have to return it to the opponent. On the other hand, money spent for living expenses is counted "existing", because it lets him escape paying the same sum of money from his savings. I take objection to such common view in this paper. Profiteer should pay the whole amount of ill-gotten gains including the amusement expense. But he doesn't have to return even the living expenses, when he has no means. I interpret that this is just the effect of good faith.