채권양도행위의 사해행위취소시 채무자에 대한 통지 여부 - 2015. 11. 17. 선고 2012다2743 판결 - (Whether the Debtor is Notified when the Act of Transfer of the Credit is Canceled)

서지정보

· 발행기관 : 중앙대학교 법학연구원
· 수록지 정보 : 法學論文集 / 41권 / 3호 / 121 ~ 147페이지
· 저자명 : 황경웅

초록

The court ruled that the creditor should notify the third party of the cancellation of the transfer of the credit by way of the recovery when the creditor does not withdraw from the third debtor when the transfer of the credit is canceled due to the fraudulent act(대법원 2015. 11. 17. 선고 2012다2743 판결, Supreme Court Decision of December 27, 2015 Decision of December 27, 2012). However, even if the notice of cancellation of the notification of the transfer of the credit to the third debtor is given in the same manner as the above judgment, the debtor can not exercise the bond with the third debtor because of the relative nullity theory of the case. This is a natural result.
In this case, it is not meaningful to notify the third debtor of the cancellation of the transfer of the credit as the method of restitution of the transfer of the credit, which is the object of the act. In other words, the notification of the transfer of the credit in the transfer of the credit is only a requirement for the transferee to be able to exercise the credit for the third debtor as a countermeasure. Even if the method according to the objected decision is taken, the debtor shall still pay the third debtor It can not exercise credit.
This is caused by the theoretical problem of relative nullity theory, and the best way to solve the problem of relative nullity theory is to solve it according to the litigation right theory.
According to this theory, the creditor can cancel the fraudulent act while the creditor is the creditor of the transferred credit without having to cancel the transfer.

영어초록

The court ruled that the creditor should notify the third party of the cancellation of the transfer of the credit by way of the recovery when the creditor does not withdraw from the third debtor when the transfer of the credit is canceled due to the fraudulent act(대법원 2015. 11. 17. 선고 2012다2743 판결, Supreme Court Decision of December 27, 2015 Decision of December 27, 2012). However, even if the notice of cancellation of the notification of the transfer of the credit to the third debtor is given in the same manner as the above judgment, the debtor can not exercise the bond with the third debtor because of the relative nullity theory of the case. This is a natural result.
In this case, it is not meaningful to notify the third debtor of the cancellation of the transfer of the credit as the method of restitution of the transfer of the credit, which is the object of the act. In other words, the notification of the transfer of the credit in the transfer of the credit is only a requirement for the transferee to be able to exercise the credit for the third debtor as a countermeasure. Even if the method according to the objected decision is taken, the debtor shall still pay the third debtor It can not exercise credit.
This is caused by the theoretical problem of relative nullity theory, and the best way to solve the problem of relative nullity theory is to solve it according to the litigation right theory.
According to this theory, the creditor can cancel the fraudulent act while the creditor is the creditor of the transferred credit without having to cancel the transfer.

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