債權者取消權에서 債權者인 受益者의 保護에 관한 考察

Abstract

The Obligee's right of revocation especially purports to preserve obligor's property and to guarantee reimbursement of obligee's credit. So, although the obligee is not the parties to a juristic act between obligor and a third party, he can exceptionally revocate the later contract in dispute. Then, in practical cases, both the obligee and the third party have due credit under respective contracts to obligor. Therefore who has and exercises the obligee's right of revocation is detemined by the point of time of respecitive contractings. It should be noted that a third party in the context of fraudulent juristic act or obligee's right of revocation is both a person enriched and a due creditor to obligor, only I use the legal term of a third party in following writhings to explain it briefly. The principle of equality to the creditors is applied to both the obligee and the third party. So, whether both the obligee and the third party can be protected evenly or not is the very point at issue in this paper. Specifically this paper examines a couple of disputes. First, I examined the necessary conditions of a fraudulent juristic act in case that the contract between an obligor and a third party is payment in substitutes(accord and satisfaction in civil code). Second, I studied how a third party's credit can be reimbursed if a contract between an obligor and a third party is canceled by an obligee's right of revocation for the contract is a fraudulent juristic act. Third, I considered whether a third party can have a right of claim for apportionment if the property recovered to obligor is to be apportioned. Finally I investigated whether a third party can have a right for proportional distribution to apportionment of obligor's property or a claim for set-off when a third party shall return the value of the obligor's property. To give definite answers to these questions, I have examined the rationale of obligee's right of revocation, and then I have researched Supreme Court cases on the above issues of law and reviewed the precedent established by the court and the legal theories involved. Supreme Court cases concluded that a third party in the context of fraudulent juristic act has almost equal legal status with a third party who is a person enriched in general juristic acts but the third party in the context of fraudulent juristic act needs to be protected by giving him the same legal status with obligee who has right of revocation as the case maybe.