채권자취소권에 관한 민법개정안의 검토

Abstract

An obligee’s right for revocation of fraudulent act and the right of denial in bankruptcy proceedings have the same purpose in the sense that an obligee seeks to secure the responsible properties by revoking or denying an obligor’s fraudulent act. Therefore, the draft of the Civil Code amendment regarding an obligee’s right for revocation of fraudulent act is assessed as stipulating the right of denial in the Obligor Rehabilitation Act in an integrated and unified way. Also it is assessed as intending to seek a balanced regulation between an obligee and an beneficiary, and also among the obligees. However, in order to solve the problem related to belonging, etc. of the surplus remaining after getting a dividend through the enforcement of forcible execution by an obligee against the real properties recovered in the name of an obligor based on a judgment of obligee’s revocation of fraudulent act, it is required to establish a legal foundation for a beneficiary to accept (admit) the forcible execution based on forcible title against an obligor within the extent of joint security. That is to say, the main text of Article 407-2, Paragraph 1 in the amendment draft shall be revised as “An obligee may enforce a force execution against the properties of a beneficiary acquired on the basis of legal acts specified in Article 406 in the name of an obligee within the extent of joint security in accordance with the Civil Execution Act.” In addition, the amendment draft has an academic value in that it is an outcome presenting a solution through the attempt of critical approach from various points of view with regard to the system of an obligee’s right for revocation of fraudulent act under operation depending on two articles in the above. Therefore, it is desirable to have further discussions in legal comparison together with practical review actively.