채권자취소권에서 “모든 채권자”의 보호 방안에 관한 연구

Abstract

The Creditor Revocation Right, which can cancel the actions of the debtor beneficiary with amendment the three basic principles of the Civil Act, is to protect “all creditors” against the debtor. And the protection of “all creditors” means that liable assets of debtor must be equally distributed to “all creditors”. Unlike ordinary lawsuit where creditors and debtors existing, the Lawsuit for Fraudulent Action Revocation has many complex things in the lawsuit and enforcement process. In connection with the lawsuit, there a debtor other than the revocation creditor (plaintiff) and beneficiary (defendant) and there are other creditors in the same position as the revolving creditor. As a result of the lawsuit, it may be possible to return the raw materials or only to pay the compensation of equivalent value. In addition, during the lawsuit for fraudulent action revocation of the revocation creditor, if the creditor files a separate lawsuit for fraudulent action revocation, the judgment also can be a problem. In the enforcement process, the process of distribution of responsibility for assets returned by each judgment is different, and the revocation creditor and the other creditor, each they are creditors of the same debtor. Thus, even though they should be distributed equitably, they may not. Furthermore, in some cases, the endemic creditor may be divided than other revocation creditor who have filed a lawsuit for a long period of time. Like this, there is a complicated legal relationship in the creditor revocation right, however, the Civil Law only has two provisions of Articles 406 and 407, it is significant that “all creditors” are not received their benefit equally at present. With the problem about the scope of “All Creditor” for principal return, this paper reviewed in four ways (① a creditor who acquired a bond before the fraudulent action ② a creditor who acquired a bond after the fraudulent action ③ when the beneficiary who is the other party to the lawsuit for fraudulent action revocation is one of the creditors ④ if the other party to the lawsuit for fraudulent action revocation is a just beneficiary, it can be included in “all creditors). In the case of ①, there is no quarrel. In the case of ②, there is a negative theory that the creditor is not included and the affirmative theory that the creditor who acquired the bond to the debtor after the fraudulent action can be the scope of “all creditors. The judicial precedent taking a negative theory. As such, if the judicial precedent taking a negative theory, the executing agency should not pay dividends. Because the creditors that acquired the bonds after the fraudulent action are not included in the scope of “all creditors”. However, if the creditor who acquired the bonds before the fraudulent action, does not make an objection to dividend amount of creditor who acquired the bonds after the fraudulent action, the executing agency have to distribute to creditor who acquired the bonds after the fraudulent action. It can be the contradiction. However, even though there is a contradiction, it means not “all creditors” are not protected. This is because, the creditor before fraudulent action, can make an objection about distribution at the dividend date, if the missed, they can get the compensation for unfair profits gained by the infringer. Therefore, the creditor before fraudulent action can be protected from the creditor after fraudulent action. In case of ③, there are the negative theory that creditor cannot include in “all creditor” and affirmative theory, the judicial precedent taking an affirmative theory. It is natural that creditors to the debtor, should try to recover their bonds from the debtor and it is reasonable to assume that the beneficiary who has taken the first step to recover his debt should be included in the scope of “all creditors”. In case of ④, there are negative theory that is not included in “all creditors” and affirmative theory, however, the judicial precedent taking a negative theory. When recognizing the scope of “all creditors”, the joint security of other creditors who had the bonds at the time of fraudulent action can be declined. And there is a risk of encouraging another fraudulent action, so the negative theory is valid and will not be a problem. On the other hand, the case of compensation of equivalent value is different. Like the principal return, in the compensation of equivalent value, “all creditors” must be distributed fairly, but not so. In the case of the current system and judicial precedent of creditor revocation right, first, in the compensation of equivalent value judgment, when the beneficiary compensates the chargeable properties to revocation creditor, it is necessary for the revocation creditor to monopolize and distribute the above liable property and protect the other creditor. In the case of the current system and judicial precedent of creditor revocation right, first, in the compensation of equivalent value judgment, when the beneficiary compensates the chargeable properties to revocation creditor, it is necessary for the revocation creditor to monopolize and distribute the above liable property and protect the other creditor. as a method of preparation for this, the other creditors have to do the 'Injunction for Prohibition of Provision' that the prohibiting the beneficiary from indemnifying the creditor with the liability, or doing the 'independent party participation' to lawsuit for fraudulent action revocation between revocation creditor and beneficiary. Regarding this, there is a judgment(2012다47548, 4755 judgment, 2014. 6. 12. sentenced in Supreme Court) which nonsuit the independent party participation application at the lawsuit for fraudulent action revocation, however, this judgment is in the Requested Lawsuit for Registration of Ownership Transfer based on the Substitute Reimbursement Agreement by plaintiff to defendant, the revocation creditor participating in independent parties to this lawsuit and this substitute reimbursement agreement can be the fraudulent action, so request the revocation. Therefore, until now, in the lawsuit for fraudulent action revocation, the Supreme Court has not dismissed the claim of the other party's independent parties. In other words, it is not the direct case where the other creditor has applied for the independent party's participation in the lawsuit for fraudulent action revocation of revocation creditor. The independent party’s means during the lawsuit, making the other party between the plaintiff and the defendant both or one party, and participate in lawsuit to get the judgment only about his claim related with claim between the plaintiff and the defendant at once. This is a kind of suit during the lawsuit, and it is intended to promote the litigation economy by resolving the disputes of plaintiffs, defendants, and participating persons without any contradiction, and to prevent contradiction and conflict of judgment. The independent party participation application that is recognized in the Civil Procedure Act is applied to a lawsuit for fraudulent action revocation. This will be in line with the principle of equality of creditors pursued by the creditor revocation right. Therefore, the above independent party participation application should be accepted. The second is the case where the beneficiary is one of the creditors of the debtor in the compensation of equivalent value judgment. The creditor who can also be the beneficiary is the creditor to the debtor and he able to deny the proportional benefit to his credits. However, the result is that the revocation creditor monopolizes the liability property, and the protection is necessary. When the creditor who can also be the beneficiary received the compensation of equivalent value judgment he cannot claim the amount of his benefit to revocation creditor, so they receive the 'Principal Return Judgment'. In case of the principal return judgment, the creditor who can also be the beneficiary is in the scope of “all creditors” in Article 407 of the Civil Law, so the creditor who can also be the beneficiary can be divided by the amount of his own interest in the liable property. As mentioned above, as a protection measure for “all creditors” between other creditors and revocation creditors, they receive the injunction for prohibition of provision and a protection measure for creditor who can also be the beneficiary and it is an independent party participation applications they receive the principal return judgment. The academic community has pointed out a number of problems in this compensation of equivalent value judgment. As a result, the Civil Law Revision Committee has proposed amendments to the 10 provisions of the Civil Act and the 1 provision of the Civil Execution Act concerning the creditor revocation right. Following the amendment to the Civil Law and the Civil Execution Act, these has been a problem in the academic community, and the problems between the revocation creditor and the other creditors, the creditor who can also be the beneficiary and revocation creditor can be protected as Article 407 Section 1 of the Civil Law and Article 248-2 of Civil Execution Act. However, even under the amendments to the Civil Law, “all creditors” from their creditors are not protected. For this protection and the more assured protection between the 'Article 407 Section 2 of Civil Law Amendment' and “all creditors', the 'Article 407 Section 2 of Civil Law Amendment' have to be newly established as a prerogative provision for the application for participation of independent parties. About the Article 407 Section 2 of Civil Law Amendment, current Civil Law and judicial precedent, in the compulsory execution proceedings for liable property, original creditor is preferred then “all creditors”, in particular, the protection of “all creditors” is necessary. Based on the amendment of the Civil Law, It is no exaggeration to say that the way of the protection of “all creditors” on the creditor revocation right, the most important part is how to solve the problems related with their own creditors. In this regard, Article 407 Section 2 of the Civil Law Amendment was proposed to protect “all creditors” from their own creditors. In this paper, proposing newly the priority of preliminary injunction and propose the method to protect “all creditors” form their own creditors. The priority of preliminary injunction make the revocation creditor who did injunction or provisional attachment can always be given preference then the own creditors who did provisional attachment or seize to the beneficiary's liable property. It is simpler than Real Rights Theory, Security Rights Theory and Responsibility Theory in Germany, and Relative Invalidity Theory, Responsibility Theory and Absolute Invalidity Theory in Japan, Reflexive Efficacy Theory, Execution Act Principle Application Theory and Relative Efficacy Emphasis Theory in Korea. Also it has the advantage of protecting “all creditors” in the creditor revocation right. Therefore, Article 407 Section 2 of the Civil Law Amendment will be necessary for the protection of “all creditors”. It means that in accordance with Article 406, Section 2 of the Civil Law Amendment, make a stipulation to allowing other creditor can apply for independent party participation in the lawsuit for fraudulent action revocation of the revocation creditor. In this regard, there is a way for the court to accept applications from other creditors to participate in independent companies, but in order to clarify the legal relationship more clearly, it is necessary to stipulate it in the amendment of the Civil Law. When an independent party application is filed, the advantage of “all creditors” being fairly distributed is substantial. Since the current judicial precedent, before the stipulation of amendment, there was no judged whether right or not about application of independent party participation. So, I expect that when there is the application of independent party participation from the other creditors, the court accept this application of independent party participation. The creditor revocation right is the regulation for protection of “all creditors”, and the “all creditors” must be distributed fairly in accordance with the principle of creditor equality. Through this paper, I propose the following ways to protect other creditors from revocation creditors in current civil law, such as 'Injunction for Prohibition of Provision' and 'Participation of Independent Parties', If the beneficiary is one of the debtor's creditors, receive the 'Principal Return Judgment' not the compensation of equivalent value judgment, as the legislative, the 'Article 407, Section 2 of the Civil Law Amendment' which is based on the priority for preliminary injunction in order to protect “all creditors” from their own creditors and the 'Article 406, Section 2 of the Civil Law Amendment' for protection between the revocation creditors and other creditors each, and the economic aspect of the litigation. Through these protection methods for “all creditors”, I hope that the principle of equality of creditors pursued by the creditor revocation right will help to keep up.