債權者取消權에 관한 몇 가지 爭點 - 대법원 2006. 10. 26. 선고 2005다76753 판결 및 대법원 2008. 12. 11. 선고 2007다69162 판결을 중심으로 -

Abstract

This papers examines the jurisprudence on the effect of obligee’s right of revocation. On the assumption that the obligor contracts with a third party and disposes of property with the knowledge that it would prejudice the obligee, the obligee has a right to contest the transfer through a civil suit for restitution in order to revoke disposition of property by obligor. If property that the obligor transfers to a third party is money, it is necessary to determine whether the obligee can claim the satisfaction for loss incurred by delay and the interest in arrear besides the principal. If this is an acceptable remedy, the starting point of damage should be determined in order to compute the period and the proportion of interest. If property that the obligor transfers to a third party is real estate, is it possible for the obligee to demand the profit or rent on the real estate transaction from the person who has derived a benefit or from the subsequent purchaser? I have researched Supreme Court cases on the above issues of law and reviewed the precedent established by the court. Before my examination of case precedent, I studied the meaning and the usage of restitutioin integrum in the civil code. I analyzed two separate notions of restitutio integrum, as an effect of both rescission of contract and as a revocation of a fraudulent act (meaning obligor’s juristic act that prejudices an obligee’s right). I concluded that legal interpretation should be same in these two contexts unless it is against the purpose of law. The two cases reviewed in this paper concern the same legal issues, however, the court arrived at different conclusions when considering the type of property that an obligor disposes of to a third party. I suggest, therefore, that the legal principles of cases concerning restitution as an effect of revocation of fraudulent juristic act are contradictory. As a solution, I propose rental income of real estate and interest arrears of currency should be returned just as in the case of restitution on a rescission of a contract.