이혼에서 재산분할청구권 보전을 위한 사해행위취소권

Abstract

The right to revoke the Fraudulent Act under family law is reserved to preserve the right of marital property division on divorce. Article 839-3 of the Civil Act was newly established to preserve the right of marital property division before a judgment or trial on property division due to divorce is finalized, especially the right of marital property division in the future even before filing a divorce lawsuit. On the other hand, it is a question whether Article 839-3 of the Civil Act has a different effect from Articles 406 and 407 of the Civil Act, which stipulates the general right to revoke fraudulent acts. Article 839-3 of the Civil Act is an independent regulation that has a different effect from Articles 406 and 407 of the Civil Act, and there is a theory that certain claims based on in-kind division become indemnity claims for the revocation of fraudulent acts, and the returned property can be divided in kind. However, in view of the fact that the essence of the right to revoke the fraudulent act is to preserve the debtor's jointly collateral property, and the effect of the revocation of the fraudulent act is relative and affects other creditors, Article 839-3 of the Civil Act is different from the general effect of the revocation of the fraudulent act unless there is a clear legislation. I don't think it can be interpreted as a stand-alone rule. Therefore, the division of marital property according to the revocation of the fraudulent act should be reserved only by monetary payment, not in-kind division. In addition, the specific right to claim the property division arises due to the finalization of a judgment on divorce and division of property after an act of negligence, and the scope is also determined by consultation or trial. Therefore, if there is an act of disposition on the property of one of the spouses, it is uncertain whether the above disposition becomes a fraudulent act, and the scope of the fraudulent act is uncertain until the above specific right arises. Therefore, the method of determining the scope of the trial or revocation of the right to revoke the fraudulent act should be different from the general annulment of the fraudulent act according to such uncertainty. Furthermore, there is a question whether priority can be given to one of the spouses who are claiming property division, both in the compulsory execution and distribution of the property recovered from the beneficiary or transferee to the debtor, and in the relationship with other general creditors. However, unlike the fact that a certain portion of the property division is given de facto priority when one of the divorced couples divides the property that harms the other creditors, the essence of the right to revoke the fraudulent act is the preservation of joint security for the property restored to its original state due to the revocation of the fraudulent act In view of this, it is not possible to give priority to either side of the couple.