취소채권자의 가액배상청구권은책임재산이 될 수 있는가 - 채권(Forderung)의 급부보유력을 중심으로 󰠏

Abstract

The Supreme Court Judgment 2017Ma499, dated August 21, 2017, permits the seizure and claims transfer command for revocation of creditors’ right to claim monetary compensation. Since civil execution is administered to the property vested in the debtors, the right to claim monetary compensation is deemed the property of revocation creditors. To acknowledge any right as claims, however, it should include the right to demand performance, the right of resource, power of execution, and power of retaining benefits. However, the right to claim monetary compensation does not include the power of retaining benefits, and therefore cannot be deemed as claims nor property of revocation creditors. The Civil Act provides that the revocation and restitution of its original status takes effect for the benefit of all obligees (Article 407 of the Civil Act), and does not acknowledge the priority of the creditors who institute a lawsuit for a creditor’s revocation right. Given the purpose of the creditor’s revocation to secure general property of the debtors for the benefit of all creditors and serve as a preliminary process for compulsory execution by which creditors become execution creditors, it should be deemed that any money received by revocation creditors by exercising the right to claim monetary compensation should be reverted to general property of the debtors and should not be enjoyed by individual revocation creditors. The same conclusion will be reached when examining the essence of the right to claim monetary compensation. Claim for monetary compensation is a type of claims for restitution exceptionally acknowledged when the original cannot be returned. When the method of restitution is different, is it appropriate to assume a different amount of “property” of revocation creditors?Further, the Supreme Court does not allow for the seizure of any right exercised by subrogating creditors or collecting creditors. As revocation creditors’ right to claim monetary compensation shares the same nature of such right, it is not appropriate to distinguish them in consideration of systematic consistency. In sum, the right to claim monetary compensation should include the right of collection and the right to receive performance in addition to the right to demand performance, the right of resource, and power of execution, but does not incldue the power of retaining benefits. As it cannot be acknowledged as property of revocation creditors, therefore it is reasonable to conclude that it is not subject to seizure or claims transfer command.