자금 차용을 위한 물적 담보 설정행위의 사해성 판단 - 대법원 2015. 12. 23. 선고 2013다83428 판결을 중심으로 -

Abstract

The Supreme Court has ruled that a debtor in an insolvent state who has pledged material collateral to certain creditors generally engages in a fraudulent act. Furthermore, fraudulence may be denied in exceptional circumstances where the debtor has taken a new loan as an essential measure to regain self-reliance, in consideration of the debtor’s subsequent actions. However, the Supreme Court’s Decision of December 23, 2015(2013 Da 83428) provides a standard for determining fraudulence, stating that a deceptive act is not automatically established if all or most of the new loan proceeds are used to repay the existing loan. In view of recent concerns about the risks posed by real estate project financing, this study examines the criteria for determining the fraudulent nature of granting security to a creditor as a potentially problematic issue in such financing. The analysis focuses on the Supreme Court cases mentioned above, considering the purpose of the law recognizing ‘The protection of creditors against fraudulent conveyances’, trade safety aspects, the possibility of the debtor’s ultimate rehabilitation, and the realities of transactions. Additionally, this study investigates whether granting security to a creditor to borrow funds can be regarded a simultaneous exchange. My provisional conclusions are as follows: ① The practice of simultaneous exchange transactions should be approached from the perspective of ‘fradulent conveyance’ rather than ‘preferential transfer’. ② In cases where the provision of collateral for additional borrowing is considered to have been carried out as part of an simultaneous exchange, it must be demonstrated by the plaintiff creditor, not the defendant beneficiary, that there was no economic rationale for the provision of collateral.