채권 양도에 대한 채권자취소권 행사시 사해성 판단의 기준

Abstract

If the debtor who is in excess of debt transfers the debt to a specific creditor, the act of assigning the debt may be a fraudulent act against other general creditors. A clear criterion is needed to determine whether a fraudulent act has been established. First, the primary criterion for judging of fraudulent is whether or not a lack of common collateral, an objective requirement, has been induced or deepened. Since this may be determined differently depending on the type of action, it is necessary to determine for each action type. Even if the lack of common collateral has been objectively aggravated by the assignment of claims, it may be reasonable to deny the fraudulent by taking into account the various circumstances of the debtor. Therefore, it is necessary to secondarily consider the comprehensive factors to determine whether fraudulent acts are established. In particular, in the case of preferential transfer such as the assignment of claims to specific creditors, the degree of fraud according to objective factors cannot be said to be high. Therefore, it is necessary to strictly apply other comprehensive considerations. One of these factors to consider is the recently revised Japanese civil law regulations.