사해행위 취소에서 가액배상과 전부명령- 대법원 2017. 8. 21. 자 2017마499 결정 -

Abstract

When a creditor of a revocation of a Deceptive Act receive a judgement on the revocation of the Deceptive Act and a valued compensation against beneficiaries or subsequent purchaser(Hereinafter referred to as 'a obligor for a valued compensation'), the creditor obtain a claim for value compensation against a obligor for a valued compensation by the Creditor Attribution Theory. However, the obligor can not act a right of set-off to the creditor as a claim to a debtor a revocation of a Deceptive Act. Therefore, the issue is whether the creditor's valued compensation claim can be set-off on an even basis with the claim held directly by the obligor(Hereinafter referred to as 'the direct claim'), and whether a seizure and an assignment order by the obligor for the creditor's valued compensation claim with the authority to execute the direct bonds are legitimate. In this regard, the decision of the subject of the study does not directly judged the possibility of offsetting the valued compensation claim of the creditor by the direct claim of the obligor, and judged that the seizure and the assignment order are legitimate regardless of the possibility of offset because the valued compensation claim is not a claim prohibited to be seized. I agree with the conclusion of the study's decision that the seizure and the assignment order are legitimate, but I think the reasons are insufficient. If it is not possible to offset the obligor's direct claim, the seizure and the assignment order cannot be allowed in view of the prohibition of offsetting under the effect of laws that treat other creditors equally. The creditor is obliged to return the value of compensation to the debtor, for the equal enforcement of other creditors' valued compensation and other creditors can enforce enforcement of the debtor's valued refund claim. The creditor may also be reimbursed in preference to offsetting the debtor's valued refund claim as the creditor's preservation claim against the debtor unless there is special circumstances. Even if the obligor offsets the direct claim, the creditor bears the valued refund debt since the direct claim has gained the extinction. The other creditors are forced to enforce the seizure and the assignment order against the valued compensation claim. The creditors can also claim offsetting. Therefore, offsetting a direct bond of a value payer does not affect the compulsory execution of a reversible creditor or other creditors. Furthermore, if other creditors have seized, collected or ordered orders for repayment of the debtor's reimbursement debtor, the creditors will be liable for the canceled creditor. The court shall obtain the right of enforcement to enforce and enforce the other property of the creditor. In this case, the debtor can participate in the dividends as the direct claim and receive equal payouts with other creditors, so offsetting by the direct claim of the valuer does not affect the magnetic force of the canceling creditor. Therefore, the seizure and the assignment order of the obligatory duty is legal. Therefore, I think that the reason for the decision of the subject to be studied should be supplemented, and the legislation that introduces the obligation of depositary deposit etc. is necessary for the equality of the revocation of the Deceptive Act