지금 우리의 채권자취소권에 관한 문제의 현실성

Abstract

In Korea, the Civil Act has only two articles concerning Creditor's Right of Revocation: Art. 406 and 407. Numbers of academic theories point out the problem that there is a disharmony between the interpretation of art. 406 and art. 407. Theories and precedents have been interpreting “revocation” in art. 406 as relative effect, but “restitution of its original status” in art. 406 as “to return the object itself which the beneficiary or subsequent purchaser has received” to harmonize the word of art. 407. This is the problem that is pointed out by many scholars. As a result of that, the beneficiary lost the object, though he or she has still the ownership of it by reason of a relatively valid contract between obligee and beneficiary. The object that returns to the obligee is regarded as his or her property only for the execution proceeding. That means the actual right of the object belongs to the beneficiary, but formally belongs to the obligee. I could not agree with the legal fiction. Because the legal fiction shown by the precedent is established using wrong method. Where did the problem like that come up? This matter arises out of the disharmony between the interpretation of art. 406 and the word of art. 407. The Supreme Court Decision 2015Da217890 is that problem itself. So we have to fix the problem anew by a interpretation or revision.