채권자취소권 행사에 있어 수익자에 대한 몇 가지 문제

Abstract

In order for the obligee’s right of revocation, the debtor’s a fraudulent act, the debtor’s fraudulent intention, and the beneficiary’s fraudulent intention are required. According to current Supreme Court cases, if a obligee exercising the right to revoke a obligee claims the debtor’s incompetence and excess debt to prove that it is a fraudulent act, the debtor’s intention to fraudulent is presumed, and the beneficiary’s intention to fraudulent is also presumed. The beneficiary must bear property losses by revocation and restitution of its original status as a result of the obligee’s lawsuit. However, it is difficult for the beneficiary to defend with active defense in the litigation process. This is because most of the requirements for the establishment of a claim suit depend on the debtor's objective situation and the debtor’s perception. The range of damages that the beneficiary must bear as a result of the lawsuit is also not constant. This is because it is interpreted that the scope of exercise of the obligee’s right of revocation is limited to the preserved bonds, but it can be expanded at any time based on Article 407 of the Civil Act. The beneficiary wants to compensate for the damage caused by the restoration through the debtor, but this is not easy either. The effect of the obligee’s right to revocation is regarded as a relative effect. Since the effect of the obligee’s right to revocation lawsuit does not reach the debtor, the effect of the legal act between the debtor and the beneficiary remains the same. Therefore, the beneficiary is only allowed to claim the return of unjust enrichment against the debtor. However, through the fraudulent act cancellation lawsuit, it was confirmed that the debtor was no property. The beneficiary’s claim for the return of unjust enrichment is a claim established after the fraudulent act and cannot be included in the enforcement procedure for the debtor’s liability property returned from the beneficiary. If the beneficiary’s malice has reached the degree of ‘conspiracy’, the beneficiary’s damage can be understood. Under the current legal system, which “presumption of fraudulent intentions,” it is difficult to bear the loss of the beneficiary. This problem is included in the amendment to the Civil Code. I hope this does not go away.