물적담보 제공행위의 사해성 판단 기준

Abstract

In this article, I examined criteria of avoiding the transaction that granted a security to creditor, outside bankruptcy proceedings. My conclusions are as follows. First, when insolvent debtor granted one of prior creditors a security, such transaction is a preference and an incongruent coverage, so can be avoided by Korean Civil Law Art.406(Creditor’s Right to Avoid Fraudulent Act). Such transaction is a sort of fraudulent act in a broad sense. Second, when insolvent debtor granted new creditor a security, such transaction can be fraudulent act in a narrow sense. But when debtor could not but make such deal to rehabilitate himself, it may not be avoided. In that case, granting security not only for new debts but also for previous debts may not be avoided. However, the denial of avoidance about previous debts can only be justified under strict conditions. If not, other prior general creditors are likely to be unduly disfavored for the individual benefit of a new secured creditor. Third, when insolvent debtor granted one of prior creditors a security in his property, on which provisional attachment had been executed by another prior creditor, prior provisional attachment creditor and secured creditor stand on the same rank in auction and distribution procedure. So such security transaction is not fraudulent act to prior attachment creditor. Fourth, when real guarantee granted another person’s creditor a security in his own property, such transaction is fraudulent act in a narrow sense without regard to the existence of prior provisional attachment creditor on that property. But the criteria of avoidance may be different according to the legal relationship between real guarantee and debtor. Fifth, when real guarantee granted another person’s creditor a security in his own property, such transaction can be avoided by Korean Debtor’s Rehabilitation and Bankruptcy Act Art.100 para.① subpara.4(Avoidance of Gratuitous Benefit), only if such deal is gratuitous not only from the viewpoint of real guarantee, but also from that of the secured creditor. Sixth, when insolvent debtor made a contract, and consequently security right came into force by operation of law, such contract can be avoided only if contract parties abused statutory security right. The more difficult it is for outside parties to identify the security right by operation of law for the lack of public notice about that right, the more likely the abuse of the right is to happen. So accordingly, court must screen the abuse of the right in a more positive manner.