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So-called ¡°triangular constellations¡± including instruction case, stipulation in favour of third party case and assignment of claim case are the crux in the unjustified enrichment law. Since the concept of Leistung has been devised to solve these problems in Germany, triangular constellations are construed as a shortcut of the chain arrangements of transactions. Although this solution has been criticized, it is still recognized as a rule of thumb. After the 2000s this solution has been accepted in Korea, now it is settled firmly in a series of Supreme Court decisions. One of the notable points is that the direct enrichment claim was admitted in the assignment case (Supreme Court of Korea, 2000Da22850, Decided January 24, 2003), and it seems to be inconsistent with the other triangular constellations, namely instruction case and stipulation in favour of third party case. This paper aims to examine for the validity of this different conclusion.
The author takes note of the Draft Common Frame of Reference (DCFR) Book VII, the newest model rule on the unjustified enrichment law published for the purpose of promoting the integration of European private law. Considering the three-party situations, the DCFR contains an express provision in VII.-2:102. According to this Article, when the contract relation is to be dissolved, it should be resolved between contractual partners. The rationale of the Article is that a party must look for redress from the other party to a contract because he consented to the risk of disappointment. To permit a direct claim in the three-party situations would provide him not only a windfall not bargained for but also the opportunity to detour the risk of insolvency of the other party whom he sought out when the contract concluded. As a result the direct claim is denied in the assignment case in the DCFR. Consequently, it is not a assignee but a assignor who is obliged to reverse the enrichment. To apply this fundamental principle, there are two prerequisites: (i) a disadvantaged person performed in compliance within the obligation; (ii) also he performed freely. Otherwise, the direct enrichment claim is admitted.
It seems proper to solve the triangular constellations according to the fundamental principle of contract law, therefore the precedent in assignment case is to be changed in Korea. In so far as the enrichment is corporeal movables or immovables, however, the possibility of claim for return in rem due to the retroactive proprietary effect also to be considered because it is a separate remedy to protect the restitution of the object as such in property law. Otherwise, in determining against whom an enrichment claim is to be exercised the fundamental principle of contract law should be a primary criterion. This problem is also connected to the function and positioning of the enrichment claim under the casual system of ownership transfer.