사해행위에 의한 가등기가 부기등기로 이전된 경우 원상회복의 방법 - 대법원 2015. 5.21. 선고 2012다952 전원합의체판결을 중심으로 -

Abstract

This study analyzed the full bench decision on creditor’s right to revoke, Sentences 2015. 5. 21 and 2012, Da 952. The example of the above verdict covered the content: the subscription of purchase was done by the fraudulent act that does harm to the creditor and thus the provisional registration was finished; however, the beneficiary transferred the provisional registration to the third party not knowing the fact by menas of the supplementary registration. Thus, this study discussed that under the above circumstance, if the third party who had taken the assignment of the right completed the provisional registration and the perfected registration can, the creditor can cancel the subscription of purchase as a fraudulent act and claim the restitution against the beneficiary as the transferor of the right. According to the conventional case, the possibility for the creditor to exercise the revocation against the beneficiary was denied for the reason that the assignee (beneficiary) of the right by the above provisional registration can not be the other party for the suit for registration cancelation of the provisional registration and the grantor with the right for the provisional does not have the obligation for the compensation of equivalent value. Thus, the beneficiary with any bad intention can conceal the responsible property or can evade the debt with ease, which caused the problem of being used as the passage of deviating the reasonable property. Therefore, the Supreme Court changed the conventional case judging that in the full bench decision above, the status of the beneficiary is not extinguished by the supplementary registration, the fraudulent act against the beneficiary is recognized and the compensation of the equivalent value shall be paid even if the fraudulent act against the beneficiary is canceled and the beneficiary can not implement the obligation to cancel the provisional registration as a the restitution of the original property. This study analyzed the said decision by reviewing the restoration obligation in the creditor’s right to revoke, the effect of the supplementary registration before the provisional registration, and the possibility of the compensation for the damage against the opponent in the suit for registration cancelation and the beneficiary in the case. The above full bench decision is considered to be very reasonable in that it will largely reduce the plausibility to the act of concealing the debtor's assets, prevent a potential accident of real estate transactions, protect the parties in good faith, and achieve the stabilization of the transactions.