재산분할청구권 보전을 위한 사해행위취소소송 운용 실태 연구 -민법 제839조의3을 중심으로-

Although 7 years have passed since the Civil Code Article 839-3 was introduced, there are still many concerns and criticisms over this regulation among the academics. There have been various debates on the revoking of fraudulent act ever since the introduction of the new regulation. However, I also suggest that a serious discussion be made on how to establish a relation between this regulation and the basic legal relation theory that has been established before the introduction. After the introduction of the newly-established Article 839-3, the precedents of the lower courts insist that, in applying this regulation to specific cases, as the claim for division of property should be actually valid in the near future by quoting the basic legal relation theory, which is the established precedent theory of the Article 406, to the 839-3 and then only the right to revoke can be exercised. This, however, renders the exercise of the right to revoke no more available even with the new rule, unless either the divorce by agreement or by trial, or the claim for division of property is established. There lies the concern of the purpose of legislation being disregarded since the 839-3 adapts the 406-2, and if we remain stuck in the logic that the revoking of fraudulent act becomes valid only when either the claim is established at the moment of the fraudulent act or at least the preserved right gets established in the near future. The right to revoke for preserving the claim for division of property in 839-3, is to give a character of the preserved right with a mere probability of the establishment of the claim in an unspecifiable future(including a relatively distant future), so this character of the preserved right should be understood differently from the traditional one of 406. A concern can be raised that it may threaten the safety of contract and cause a problem in protecting a beneficiary. However, it is not likely that abolishing the limitation of the time of establishment of the preserved right will make it hard for the court to tell whether the beneficiary had good faith or malice. Thus, if there is a real conflict between spouses, the property established by the common effort of both spouses was departed, a cognition that a spouse can harm the claim for division of property which the other spouse with a legal name may have in the future, and the beneficiary knew or may have known it, I suggest that it be operated in a way to grant the right to revoke, even if the divorce or the claim for division of property is not actually established in the near future, for these cannot justify to leave the departed property to the hands of the beneficiary with malice, and this is also against the purpose of legislation of 839-3 so it cannot be tolerated.