사해행위가 취소된 경우, 수익자의 채권자에 대한 제3자의 채권침해의 성립 여부와 손해의 산정 - 대법원 2019. 7. 25. 선고 2019다206933판결 사안을 소재로 -

Abstract

The relevant judgment is a case that makes it possible to think a lot about whether or not a third party's infringement on the beneficiary's creditors has been infringed upon the creditors of the beneficiary and the calculation of damages when the fraudulent act is revoked. Fraudulent acts can be a violation of a third party's claims, and it is justified that the judgment itself reviewed the requirements. However, since the creditor(X) requested compensate for damages due to a third party's infringement of the claim after seeking cancellation of the fraudulent act and restoration of its original state, I do not think it is appropriate to argue that “if the debtor's liable property is reduced due to the infringement of the debt of a third party constituting the illegal act, the third party will have to compensate the creditor for damages equivalent to the above debt unless special circumstances exist”. As for the scope of damages, the subject judgment has some regrets about whether to recognize ordinary damages and damages due to special circumstances, and furthermore, how to calculate specific damages related thereto. The reason that the plaintiff(creditor) did not receive dividends in this case was not due to a decrease in the liability property, but because additional claims were made, which should have been carefully considered separately. Whether the added claim is ‘after’ the fraudulent act, or whether the claim itself had already been established ‘before’ the fraudulent act, but the exercise of the right should have been made only after the fraudulent act due to the fulfillment of conditions or the arrival of a period of fulfillment. Accordingly, it should have been examined more closely whether the plaintiff actually suffered damage, or whether the damage was caused by special circumstances rather than ordinary damages.