남용적 회사분할에 대한 채권자취소권의 행사 − 일본 최고재판소 판결을 중심으로 −

Abstract

Recently many cases including abusive corporate-division have been seen in Japan and these corporate-divisions resulted in the damage of creditors. Mostly the obliger uses a corporate-division type that establish a new corporation in its process and distributes assets and debts between the existing company and the new company at his will to avoid creditor protection regulations. This is possible in Japan or Korea because the Acts(in Korea Commercial Code, in Japan Corporate Code) does not provide any creditor's right of objection to the corporate- division in some conditions. So in these situations it is raised the question that the creditor who does not have the right of objection to corporate-division can be afford the creditor's right of revocation provided in Civil Code. For many years in Japan there are several rulings that deal with this material and some lower courts have acknowledged the creditor's right of revocation to corporate-division. But in a theoretical approach we have to review whether it is reasonable to admit that right because this right is provided for the situations when partners do a on-to-one transactions but this right does not know the organizational actions like merger or corporate-division.