채권자취소권에서 취소청구와 원상회복청구에 대한 제척기간의 통일적 적용 필요성에 관하여

Abstract

Under the Korean Civil Code, the obligee's right of revocation is characterized by the fact that only the plaintiff and the defendant have the effect of cancellation according to the theory of relative invalidity, and other creditors can also enjoy the effect of restoration. In addition, a short-term exclusion period is provided to minimize the liquidity condition caused by the exercise of the right to cancel. The precedent takes a position to consider a request for restoration in determining the scope of cancellation of a fraudulent act.
 Under this premise, once a request for cancellation is made, the beneficiary will be in an unstable position for a long time if the limit of the exclusion period is not applied to the request for restoration. This is not consistent with the purpose of our creditor revocation system, and it is difficult to agree with the attitude of the target judgment in that only creditors can make various choices, giving creditors an edge over bene- ficiaries, and infringing on relative invalidity and creditor egalitarianism. It would be most desirable to resolve this legislatively, but the current civil law amendment does not include this. It may be possible to consider a solution that requires the merger of cancellation claims and restoration claims, and a plan to specify the scope of the exclusion period. And even before the revision of the Civil Code, the attitude of the target judgment needs to be changed through a change in precedent.