채권자취소권의 본질 및 효과에 관한 소고

Abstract

Regarding the nature and effect of the obligee’s right of revocation, the theory of relative effect has the advantage of achieving the purpose of restoring the debtor’s responsible property, the purpose of the obligee’s right of revocation, while minimizing the impact on the legal relationship of others. If the name of ownership registration for real estate is restored from the beneficiary to the debtor’s name according to the judgment of the creditor cancellation lawsuit under the Korean Civil Act, the debtor cannot exercise his rights despite being registered as the owner, and the beneficiary is recognized as the owner even though he does not have a registered name, which can further spark legal disputes among the general public. Accordingly, this paper attempted to find a reasonable way to improve the effectiveness of the obligee’s right of revocation by reviewing the claims of the theory of absolute effect and the theory of responsibility among the positions to abolish the theory of relative effect. Taking the theory of absolute will play an important role in securing legal safety by avoiding the contradiction of inconsistency between the registered name. It is important to restore the debtor’s deviated responsible property to satisfy the obligee’s bonds in the obligee’s right of revocation, and I think the theory of absolute effect can cause a result contrary to the purpose of the creditor cancellation right in that it absolutely invalidates the act of dead harm beyond the purpose of the obligee’s right of revocation. However, in order not to affect the debtor in the exercise of the right to revoke creditors referred to in the theory of relative effect, if the property deviated from the debtor is real estate, the creditor must be able to enforce the property without canceling the registration of the beneficiary or former acquirer. I think it is reasonable to introduce a legislative improvement plan based on the theory of responsibility that the canceling creditor can directly restore the debtor’s deviant property to the beneficiary or former acquirer through the obligee’s right of revocation. In Korea, there is criticism that the concept of legal invalidation of responsibility in the theory of responsibility does not exist, and that it is not correct under our legislation because there is no lawsuit for compulsory execution. Since the concept of legal invalidation of responsibility also contains the meaning of the restoration of responsible property, it is not necessary to introduce a lawsuit for compulsory execution even if it follows the theory of responsibility because the theory of responsibility and the theory of compulsory execution are not directly related. In these various discussion situations, the following are the ways to prepare ground rules for the revocation creditor to enforce the property deviated from the debtor’s legal action, leaving the name of the beneficiary or former acquirer’s ownership intact. It may be considered to amend Article 406 (1) of the Civil Code to include a provision in the position of Article 407-2 of the 2014 Civil Code Amendment to the effect that a revoking obligee may apply for compulsory execution of property rights transferred to the beneficiary or to claim the return of property acquired from the debtor to him if the obligee exercises the obligee’s right of revocation.