채권자취소권에 관한 민법개정안 - 개정안에 관한 기본구상과 민법개정위원회의 논의 과정을 중심으로 -

Proposed Amendments to the Korean Civil Code on the Obligee’sRight of Revocation On the Suggested Basic Framework of the Amendments and RelatedTopics Discussed by the Civil Law Amendment Committee 120)Jae Hyung Kim *In case an obligor prejudices the obligee by transferring his property toa third party, it is the obligee’s “right of revocation” that entitles theobligee to revoke such fraudulent transaction and to claim restitution. Cases involving the obligee’s right of revocation have been on the increasein Korea from the time the country received an IMF bailout loan duringthe 1997 financial crisis. The increase in the number of such revocationlitigations has led to controversy over the requirements of and the effectsof the obligee’s right of revocation. The Korean Civil Code, however, hasonly two simple provisions stipulating the obligee’s right of revocation; andthere are accordingly certain limitations in solving complicated issuesconcerning the obligee’s right of revocation. The Ministry of Justice Civil Code Amendment Committee, establishedin 2009, has marked the completion of its work of five years with theplenary session held in February 2014. The most prominent part of theCommittee’s work is the amendment on the obligee’s right of revocation,which has provided ten provisions in the Civil Code and a single provisionin the Civil Execution Act. This suggests a significant departure from thecurrent system that regulates the obligee’s right of revocation with onlytwo provisions, therefore allowing much room for interpretation in the* Professor, School of Law, Seoul National University. 金載亨 : 채권자취소권에 관한 민법개정안 121stage of the application of the law. Some of the newly introducedprovisions codify the existing theories and precedents, while others departfrom current practices. As a Committee member myself, I was the first person that drafted theamendments on the obligee’s right of revocation. This paper, reflecting myexperience as the drafter, introduces the basic framework of and thedirection of the amendments and further discusses the amendments indetail, including explanations regarding the requirements of the obligee’sright of revocation as well as the effects of exercising the right to abeneficiary or a subsequent purchaser. This paper also aims to introducethe topics that were discussed in the course of drafting and, further, topresent my opinion on these topics. The fundamental function of the obligee’s revocation right is torepudiate a fraudulent transaction and recover the property from thebeneficiary or the subsequent purchaser so as to maintain the obligor’sproperty. Thus, three distinctive values - the need to maintain theobligor’s property for the obligee’s interest, the freedom to dispose of theobligor’s own property, and the need to ensure transaction security – mustbe kept in balance. In one’s assessment of the proposed amendmentsconcerning the obligee’s revocation right, the crucial question to ask wouldbe whether the amendments would realize such balance among thesevalues. More contemplation on and discussions on this issue will surelylead to a better proposal for the amendments.