사해행위취소의 효력과 민법 제407조의 법적 성격 - 2015. 11. 17. 선고 2013다84995 판결 - (The effect of the revoking of a fraudulent act and the legal nature of Article 407 of the Civil Act - 2015. 11. 17. Announcement 2013Da84995 Judgement -)

서지정보

· 발행기관 : 중앙대학교 법학연구원
· 수록지 정보 : 法學論文集 / 41권 / 1호 / 108 ~ 131페이지
· 저자명 : 김송

초록

In the event that the cancellation of registration has not been completed, though the judgment was announced in revocation suit by a creditor as plaintiff which orders the cancellation of ownership transfer registration with the reasons of the revoking of a fraudulent act and the return to the original state, this case is a matter for whether or not the registration for cancellation is valid which the other creditor has applied by subrogating the debtor based on the above judgment. The subjected judgment rules that the above cancellation of registration is valid in accordance with the substantive relationship, and announces as its basis the following argument: ‘Since the effect of the revocation of a fraudulent act extends to the other creditor in accordance with Article 407 of the Civil Act, the other creditor may seek the 'return to the original state without having to seek a separate revoking of the fraudulent act.’ However, this legal principle is contrary to the existing precedents. According to previous precedents, it is understood that the effect of the revocation can extend to the other creditor in accordance with Article 407 provided that the revocation and the realistic restoration must be made; therefore, in the above case, the effect of revocation does not extend to the other creditor and the other creditor is required to file a litigation for revocation, as well as a litigationan for cancellation of registration for the return to the original state. If it is interpreted as like the subjected judgement, as its logical consequence, the other creditors who have failed to claim the revocation and the restoration due to the lapse of the exclusion period in accordance with the previous precedent, can participate in the auction procedures for the chargeable property returned under the name of debtor through the execution of such conclusive Leistungsurteil, if they will just file the litigation for a claim for restitution only and receive the favorable judgement. The subjected judgment is reasonable in conclusion. However, there is a problem because of ignoring the purport of the exclusion period of early finishing unstable legal relation by the revocation of fraudulent act. Also, it is regretful that the legal principle as above was executed without any comments for the legal nature of the same provision, such as the issue of consistency with the existing precedents. It is expected that this precedent led to set the relationship between the common precedent of the theory of relative void and Article 407 a more logical system by presenting the explicit precedent for the above issue in the future.

영어초록

In the event that the cancellation of registration has not been completed, though the judgment was announced in revocation suit by a creditor as plaintiff which orders the cancellation of ownership transfer registration with the reasons of the revoking of a fraudulent act and the return to the original state, this case is a matter for whether or not the registration for cancellation is valid which the other creditor has applied by subrogating the debtor based on the above judgment. The subjected judgment rules that the above cancellation of registration is valid in accordance with the substantive relationship, and announces as its basis the following argument: ‘Since the effect of the revocation of a fraudulent act extends to the other creditor in accordance with Article 407 of the Civil Act, the other creditor may seek the 'return to the original state without having to seek a separate revoking of the fraudulent act.’ However, this legal principle is contrary to the existing precedents. According to previous precedents, it is understood that the effect of the revocation can extend to the other creditor in accordance with Article 407 provided that the revocation and the realistic restoration must be made; therefore, in the above case, the effect of revocation does not extend to the other creditor and the other creditor is required to file a litigation for revocation, as well as a litigationan for cancellation of registration for the return to the original state. If it is interpreted as like the subjected judgement, as its logical consequence, the other creditors who have failed to claim the revocation and the restoration due to the lapse of the exclusion period in accordance with the previous precedent, can participate in the auction procedures for the chargeable property returned under the name of debtor through the execution of such conclusive Leistungsurteil, if they will just file the litigation for a claim for restitution only and receive the favorable judgement. The subjected judgment is reasonable in conclusion. However, there is a problem because of ignoring the purport of the exclusion period of early finishing unstable legal relation by the revocation of fraudulent act. Also, it is regretful that the legal principle as above was executed without any comments for the legal nature of the same provision, such as the issue of consistency with the existing precedents. It is expected that this precedent led to set the relationship between the common precedent of the theory of relative void and Article 407 a more logical system by presenting the explicit precedent for the above issue in the future.

참고자료

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