채권자취소권의 실체법상의 성질에 대한 고찰

Abstract

A creditor's right to revoke is originated from actio pauliana on Roman law. And the modern law is maintained by a few principles. Such principles include first, a real right's superiority to a claim, second, establishment of legal system for real right for security, third, the principle of equal right among the creditors, fourth, the compulsory execution including provisional seizure and disposition, fifth, establishment of public notice system for real right changes, sixth, adaption of the system that hears only the evidence the parties submit to the court in the litigation process, seventh, clarification of compulsory execution system, eighth, guarantee for free right to dispose one's property. A claim is basically a relative right and a right against a person. However, the creditor's right to revoke is an exception to the principles and it strongly protects the creditors. The creditor may satisfy her claim by recovering the property from the beneficiary or the prior holder of the property who have obtained such property from the debtor cancelling the legal act of the debtor based on fraudulent conveyance if the creditor can not recover from the debtor due to the lack of debtor's property. Because of that, the beneficiary or the prior holder of the property may suffer unexpected damages. If that is true, there needs a theoretical justification for allowing such extraordinary remedies on the creditor's right to revoke. If the creditor's right to revoke is a legal claim, the theory of the justification for the creditor's right to revoke can not be offered, it is natural that the exercise of creditor's right to revoke must be limited as much as possible. In my opinion when there is a conflict as to who is worthier to be protected the beneficiary, or the prior holder of property should be protected more. This is because the creditor has the responsibility for not using the opportunity to protect her right by creating a real right for security or taking a procedure for a preservative measure before the debtor's fraudulent act whereas the beneficiary acquired the ownership or a real right for security by paying consideration through a legal act with the debtor in reliance on the public notice. However, I am concerned because the Supreme court case is showing the trend that the scope of the creditor's right to revoke is becomimg wide. With regard to the validity of the creditor's right to revoke, the theory of absolute void, the theory of relative void and the theory of liability have been argued. According to the theory of absolute void, any fraudulent act among the creditor, the debtor, the beneficiary, or the prior holder of property is void and the creditor is satisfied from the debtor's liability property which has been returned to the previous state from the beneficiary or the prior holder of property. Although the theory of absolute void is supported by the previous theory of the right of formation, the new theory of the right of formation or the theory of the right of formation and claim that I propose, it is still a minority opinion. I believe that when "the right of formation and claim on substantive law" is established by further study, the basis for the theory of the absolute void will be clarified. According to the theory of the right of formation and claim I argue, the fraudulent act becomes void between the debtor and the beneficiary or the prior holder of property by the formation power generated by the exercise of the creditor's right to revoke, as a result the creditor obtains new claim power(claim authority). Therefore the creditor can obtain new claim authority to demand the pull back to the debtor and the beneficiary or the prior holder of property directly. If one views the creditor's right to revoke as "the combination of formation lawsuit and performance lawsuit on procedural law", it is necessary to establish that the creditor's right to revoke is a new concept as "a legal right of formation and claim on substantive law". In relation to the exercise of the creditor's right to revoke, it is argued that it is proper to treat such action as necessary joint action against all of the debtor, the beneficiary or the prior holder as defendants because the decision needs to be uniform and affirmed, and it is necessary to introduce the third party counterclaim in Germany or the cross-claim in the U.S. so that the claim for recovery or the claim for return of unjust enrichment between the debtor and the beneficiary or the prior holder. The legal system for the creditor's right to revoke is necessary to protect the grieved creditor by controlling the debtor and the beneficiary or the prior holder with bad faith. However, the beneficiary or the prior holder is also the creditor to be protected. The legal system of the creditor's right to revoke must be operated to reasonably and fairly protect the benefit of both the creditor and the beneficiary or the prior holder under the fairness doctrine.