가압류가 사해행위 취소에 미치는 영향

Abstract

In the case of avoidance of fraud, when a provisional seizure obligee exists, a complicated juridical relation occurs on account of injunctive effect of disposal of provisional seizure. compared to a situation where the provisional seizure ovligee doesn’t exist. When an earlier provisional seizure obligee claims avoidance of fraud from after maximal-hypothec person, in the case that the debtor is at the position of maximal-hypothec set-up person, because provisional seizure obligee and maximal-hypothec-person are at the same position where they are assigned dividend equally, the avoidance of fraud can not be claimed. And in the other case that the debtor sets up maximal-hypothec with pledge of one’s property to secure another’s obligation, the earlier provisional seizure obligee will be able to claim avoidance of fraud due to the decrease of the debtor’s duty estate. Meanwhile when the other obligee claims the avoidance of fraud in the presence of the earlier provisional seizure, the effect of this avoidance doesn’t reach to provisional seizure obligee, so in the case that the registration with provisional seizure is scratched out due to some causes such as a subrogation of provisional seizure by the beneficiary, the beneficiary should enforce the price compensation and the credit amount of the provisional seizure obligee should be deducted. In the prise compensation with other causes, the interpretation that the credit amount of the provisional seizure should be deducted is reasonable.