상당가격 매각행위와 담보제공행위의 사해성 판단 기준에 관한 고찰 - 일본 민법 개정 前·後 논의를 중심으로 -

Abstract

There are three types of fraudulent transfers recognized by the Supreme Court, which are the type of collateral value decrease, the type of preferential transfer, and the type of the debtor's asset decrease. The first two types do not cause the actual decrease in the debtor's total asset, so the objective degree of fraud is weaker than the case of the act resulting in the decrease in the debtor's asset, that is the third type. So I think that the type of collateral value decrease and preferential transfer need bigger subjective maliciousness than the third kind, in order to revoke those transfers. Therefore, it can't be said that the fraudulent intention is recognized or estimated from the act itself due to simple recognition on the reduction of the debtor's asset in the first two types of transfer, unlike in the case of the type of the debtor's asset decrease. From this point of view, it is not reasonable for the Supreme Court to rule that the act of selling the real estate that is the only property owned by the debtor or providing collateral by a debtor in excess of debt can be revoked in principle, because in those cases the fraudulent intention cannot be assumed from the act itself. Even in accordance with dualism, objective requirements and subjective requirements are closely related, and the content of objective fraud should be considered in identifying the extent and content of subjective malignity for each type of action. The meaning of 'fraud' in the type of collateral value reduction is that the collateral value of the debtor's asset is reduced by converting real estate into cash that is easy to consume and conceal by the debtor, which is economically equivalent to a real decrease in total property. Therefore, only if the debtor disposed of the property with an intention to conceal or consume the consideration at the time of the act, and the debtor actually has consumed or concealed the consideration, resulting in a decrease in the debtor's total asset, and transferee was aware of the debtor's intention to conceal and consume the price, the act of selling the real estate that is the only property owned by the debtor can be revoked for fraudulent transfer. In the revised Japanese Civil Code, a new provision has been made to the same purpose as above. I think it makes logical sense. Meanwhile, the meaning of 'fraud' in the preferential transfer is that it sacrifices other creditors and harms the interests of other creditors by giving preferential repayment rights to the certain creditor. However the system of the creditor's right to revoke is not the one that guarantees the equal repayment to every creditor, so the preferential transfer shall be revoked under the strict requirements. Therefore, for fraudulent transfers, including the act of providing collateral to the certain creditor, only the case significantly contrary to justice and fairness shall be revoked. In this regard, the objective fraud of the act of providing collateral for the existing debt may be evaluated to be very low, if not as much as reimbursement, and the level of subjective malignity will be required to be quite high. The content of the subjective malignity of the preferential transfer would be 'the motivation to sacrifice other creditors and benefit the certain creditor, knowing that the debtor was actually bankrupt at the time of the act and that making such preferential transfer would make it impossible for other creditors to satisfy their claims'. Therefore, I think although the act of providing collateral does not correspond to fraudulent acts in principle, it is reasonable to regard it as an exceptionally fraudulent act when such subjective maliciousness exists, and I think the revised Japanese Civil Code to this effect is worth considering in this regard.