사해행위취소로 원상회복된 부동산 처분행위의 효력 -대법원 2017.3.9. 선고 2015다217980 판결-

Abstract

Supreme Court's decision No. 2015-da-217980 decided on March 9, 2017 provides that if the obligor disposed a property of which registration name is restituted due to the revocation of fraudulent act to a third party, the obligee who applied for revocation or the obligee who is under effect of revocation and restitution of its original status according to Article 407 of the Civil Act may claim for cancellation of registration against the title holder of responsible invalid registration for compulsory execution of the property which is handled as the obligor's chargeable property. However, the claim for cancellation of registration according to the substantial law should be granted to the obligee, etc. who applied for revocation in order to be able to claim for cancellation of registration against a beneficiary or a transferee, as the fraudulent act or the obligor's act of disposition regarding the property, of which original status is restituted under the name of the obligor according to the revocation of fraudulent act, is null and void. Since the obligee who applied for revocation may ask the beneficiary for the restitution of its original status, the obligee has the claim for cancellation of registration according to the substantial law as his/her unique right against a beneficiary according to Article 406. However, Article 406 is not based upon the premise that the obligee may apply to the court for the revocation of fraudulent act and restitution of its original status against a ‘beneficiary or a subsequent purchaser.’ Therefore, unless the act of disposition for the obligor's property of which original status is restituted fulfills the necessary conditions specified in Article 406, it is considered that the obligee, etc. who applied for revocation has no claim for cancellation of registration against a third party according to Article 406. Although the obligor does not acquire a certain right for the revoked property of the obligor directly, it is handled as the chargeable property of the obligor in the relationship with the obligee who applied for revocation and other obligees. Therefore, the obligee, etc. who applied for revocation may exercise the claim for cancellation of registration against a third party who took over the property which is handled as the obligor's chargeable property through subrogation by the obligor.