사해행위취소소송에서 피보전권리의 발생시기 - 민법 제839조의3 신설 이후 판례를 중심으로 -

Abstract

This survey reviewed whether the wife, who has the right of division of property on divorce, can exercise the right of revocation based on the obligee's right of revocation under the Korean Civil Code Article 839-3 in regard to the property which the husband disposed of without his wife's consent. The Korean Civil Code Article 839-2 provides the claim of division of property obtained by the common efforts of both spouses during marriage under the name of the husband. According to the Korean Civil Code Article 830, the property under the name of the husband is regarded as his specific property. As a result of this, he can independently dispose of this property without his wife's consent. Therefore, if the husband independently disposed of the property obtained by cooperation of both spouses during marriage, there may not be any property for the wife to claim on divorce. In this paper, I made a study of the means for wife to exercise the claim of division of property. Accordingly, I suggested two solutions to these problems, which are unfavourable to women in the notion of the impartial division of the property acquired during the marriage by both spouses. First, it is necessary that the wife can exercise the obligee's right of revocation under the Korean Civil Code Article 839-3 in regard to the property which the husband disposed of without his wife's consent. Second, we should construe the specific property on Article 830 as the property in co-ownership regardless of the name of the property. By this construction, the wife can exercise the right of revocation against the subsequent purchaser who acquired the property in co-ownership from the husband who disposed of it. With regard to this construction, I introduce the legislative instances of foreign country and present the theoretical basis. In principle, it is necessary that the right of the obligee should be brought into existence prior to the legal act which prejudice the property right of the obligee for the obligee to exercise the obligee's right of revocation. Court decisions, however, have recently recognized the exercise of the obligee's right of revocation, which came into existence posterior to the legal act, which prejudiced the property right of the obligee. In this paper, I reviewed the Supreme Court decisions, the lower court decisions, and Japanese Court decisions which recognized the obligee's right of revocation exceptionally, and presented the theoretical basis which enables the exercise of the obligee's right of revocation. Consequently, for the realization of true equality of the sexes under Article 36(1) of the Constitution, the wife should have the right of revocation by claimant of division of property on divorce based on the Korean Civil Code Article 406, 839-3, which provide that if the obligor willfully performs a legal act which would prejudice the property right of the obligee, the obligee may apply to the court for revocation thereof to return the matter to its original status. Additionally, the specific property on the Korean Civil Code Article 830 should be construed as the property in co-ownership.