소유권 이전형태의 사해행위취소에 대한 연구 - 부동산 처분금지가처분의 효력과 관련하여 -

Abstract

In the target case (Seongnam Jiwon 2018 Takyung 2112), A fraudulent act was carried out in the form of a transfer of ownership to the beneficiary, and after the creditors got injunction order to property, an auction was conducted by the preceding mortgage and the registrations including injunction order after the mortgage were deleted. On the other hand, in the subsequent dividend process, one of the creditors received dividends through a dividend objection, and the other creditors obtained an order to transfer the dividend bonds (to debtor), but as a result of the dividend objection, the dividend bonds for beneficiaries were confirmed to be non-existent. And these orders were rendered useless, and after, the case is being pursued by seeking a claim for refund of unfair profit from the creditor who received the dividend. In the case where the Fraudulent transfer was made in the form of transfer of ownership, the effect of the preservation measures(injuction) is useless or unclear due to the execution of the auction by others (prior) even though the preservation measures have been made. There is a problem in that the provisional disposition is neglected and operated as if the beneficiary's general creditors cannot be excluded. This is due to the fact that the actual law only allows the cancellation of Fraudulent transfer and that the procedural laws such as the registration and enforcement laws do not separately define the effect of exercising the right to revoke the creditor, and the status of the creditor is simply observed in terms of the operation of the system without differences from the general procedure users. In the United States, the operation of the right to cancel the fraudulent transfer ensures priority of the creditor by obtaining pre-attachment, etc., and the creditors of the successor, that is, the beneficiary, are placed in the lower priority than the creditor. In addition, the restoration of the property also takes the form of ordering an execution order to property without deleting the registration (counter effect, notice) of the beneficiary. In this respect, as in our law, at least, the satisfaction of creditor’s right through afterward procedure is not unclear. While referring to the U.S. UVTA(UNIFORM VOIDABLE TRANSACTIONS ACT) system, I suggest improvement measures, that ① the example of the claim order and ② the method of interpreting the effect of provisional disposition or preservation disposition through dividends, and ③ the execution of the property by the form of a third party objection claim with overturned. The improvement of the system was reviewed in order to devise from the obsession with the problem of restoring property and rather than to focus on the satisfaction of creditor from the property. Although more desirable to improve the system through the revision of the procedural law, it is necessary to operate the system in accordance with the satisfaction of the creditors by substantially improving and operating the procedure even in the present situation, if it is difficult to revise system.