장래채권과 사해행위 성립 요건

When fraudulent transfer is made before the debt is incurred, (future) creditors are not in general allowed to apply to the court for the revocation of such fraudulent transfer. In exceptional cases, however, the Supreme Court has held that future creditors are qualified to apply to the court for the revocation of the fraudulent transfer in case the following three elements are established: (i) Existence of legal or factual relations to establish a future creditor's right to payment; (ii) High probability to establish the future creditor's right to payment; and (iii) Actual establishment of the future creditor's right to payment. However, the above principles established by the Supreme Court may lead to a concern that the scope of future creditors' right to payment against fraudulent transfer could be interpreted too broad due to the following reasons: (1) too many factual relations could become bases to establish future creditors' right to payment; and (2) the meaning of high probability is too abstract and not objective. Such concern regarding the scope of future creditors' right usually occurs when the right is established by legal acts such as execution of contracts, so objective standards are necessary to determine ‘factual relations’ and ‘high probability.’ The Supreme Court and many scholars in Korea have observed that, in order to establish fraudulent transfer, the obligor conducting such transfer should have merely a general goal of shielding assets without any specific creditor in mind. On the other hand, the U.S. Supreme Court has held that a future creditor is capable of voiding the transfer as fraudulent if the transfer was made by the obligor with the intent to defraud that particular creditor. My paper suggests that, in order to establish fraudulent transfer for future creditors, the obligor should have at least the knowledge of the particular creditor who is raising claims against the obligor under fraudulent transfer.