부동산의 처분과 사해행위 취소의 효력

Abstract

The title of this thesis is ‘Real estate disposition and the Effect of the Revocation of Fraudulent-Subject Case: The Supreme Court of Korea Decision 2015Da217980 on March 09, 2017-’. The obligor will be free to dispose of his own property at his will, and no obligee will be able to dispute it, but our civil law allows the obligee to interfere with the obligor’s liability in special cases in order to preserve the substantial value of the bond. Under the Korean civil law, the Obligee's Right of Subrogation to Obligor(the Subrogation Claim of a Creditor) and the Obligee’s Right of Revocation(the Revocation of Fraudulent Act) are in place. The Subrogation Claim of a Creditor allows the obligee to exercise the obligor's property rights on behalf of the obligor in the event that the debtor does not exercise his or her rights, thereby preserving the liability property. The Revocation of Fraudulent Act is the right that entitles the obligee to revoke fraudulent transaction and to claim restitution of its original status, in case an obligor prejudices and does harm to the obligee(s) by transferring his property to a third party and increasing debt and obligations over assets resulting in insolvency. The Revocation of Fraudulent Act under the Korean Civil Law was introduced by the Japanese Civil Law which was enacted following French models, and in the process, the concept of reinstatement was added along with cancellation. For this reason, a unique form of the Revocation of Fraudulent Act was developed which is basically similar to but different from that of France and Japan. On the basis of the relative nullification theory, the debtor cannot be a defendant in a suit to cancel the fraudulent act and considering the subjective scope of the judgment power in a suit to cancel an act of harm (article 218 of the Civil Procedure Act), in which only the beneficiary or the former beneficiary can be a defendant, the debtor is neither party or subject to a lawsuit (article 84 of the Civil Procedure Act) seems to be able to be regarded as having difficulty in settling the grounds for cancellation of the liability. This paper will examine the significance and limitation of the above decision, and also suggest the effective application of creditor’s revocation based on the relative effect of the revocation of fraudulent and the Article 407 of the Civil Act.