사해행위 취소채권자의 가처분과 수익자의 고유채권자의 가압류 사이의 우열관계

Abstract

The Supreme Court 2012da116260 decision rendered on June 26, 2014 stated that if the creditor was given a decision of provisional disposition against a debtor’s monetary credit, and if the decision of provisional disposition was served to a third debtor, and thereafter if the creditor won the lawsuit on the merits which became final, a preservative disposition such as a provisional seizure performed after the decision of provisional disposition was served, or a forced execution based thereupon cannot oppose the creditor who performed a provisional disposition within the extent contrary to the disposition prohibition effect of the provisional disposition. This is evaluated as the first decision stating that even if the beneficiary's own creditor seizes a debtor’s monetary credit against a third debtor of the debtor provisionally after the provisional disposition of revoking creditor became effective, such provisional seizure cannot oppose the revoking creditor. In the event that a provisional seizure and a provisional disposition concur with regard to the same object, if the executing creditor's legal status is compatible, the effect of disposition prohibition is out of the question but it may become an issue if the status is incompatible. The decisions of provisional disposition and provisional seizure on the claim right to transfer registration of ownership consider a third debtor’s implementation of the procedures for transfer registration of ownership against a debtor as the contents of payment prohibition unlike a preservative disposition of monetary credit, thus the legal status of executing creditor is compatible. On the other hand, the decisions of provisional disposition and provisional seizure on the golf club membership are related to who is entitled to the legal status, and the rights of both parties are incompatible. Therefore, by citing the Supreme Court 2008da10884 decision rendered on Dec. 24, 2009, the attitude of the applicable decision which denied the effect of provisional seizure within the extent that the disposition prohibiting effect of provisional disposition affects the object of fraudulent act may be deemed reasonable.