가액반환을 명하는 사해행위취소판결과 민법 제407조

Abstract

Article 407 of the Civil Code stipulates that the revocation and restoration of a fraudulent transfer is effective for the benefit of all creditors. According to the judicial practice, which stands in the position of the theory of relative effectiveness, a judgment to revocate the fraudulent transfer orders that the title of ownership of the object be returned to the debtor. If the object is real estate, the registration of the transferee's name is expunged and debtor's name is restored. When a creditor initiates compulsory execution, the purpose of Article 407 is properly realized as other creditors participate in the distribution. However, the situation is different when restoration is carried out in the form of valued compensation. The judgment of the valued compensation orders the transferee to pay the valued compesation directly the creditor. After receiving the valued compensation, the creditor obtains preferential satisfaction by offsetting the claim to the debtor and debt to hand over to the debtor valued compensation. In this way, in the value compensation method, other creditors cannot participate in the distribution of the property recovered by the revocation of the fraudulent act, thus defeating the purpose of Article 407 of the Civil Act. This study sought to interpret the law in which the principle of equality of creditors could be enforced even in the case of value compensation within the scope of the relative effectiveness theory adopted by Supreme Court. First, I present my opinion on the meaning of relative effectiveness. Second, it is argued that, in the case of an order to return the valued compensation, the claims for valued compenstion generated by the judgment belong to the debtor, not to the creditor. If the value compensation claim belongs to the debtor, it can be said that the basis for other creditors to participate in the distribution of the returned valued compesation has been established. Third, I look for the specific ways other creditors can participate in the distribution under the Enforcement Act. In addition, the issue of participation by transferee, who can be said to be one of the creditors, is also reviewed.