채권자취소권의 준거법에 관한 비교법적 연구

In both continental law countries and common law countries, legislation on the fraudulent transfer has been influenced by Roman law, actio pauliana. Despite the use of the term ‘revocation’, the globally recognized consequence of actio pauliana is the creditor’s right to pursue such properties transferred to the third party. A comparative glance in this article shows that actio pauliana has a common triangular structure: the creditor opposes the debtor and his transferee. Moreover, two of the three legal relationships tying these three parties together are clear in their nature: the relationship between the debtor and his creditor and the relationship between the debtor and the transferee. On the contrary, the relationship between the creditor and the transferee is not clear, because the creditor is the third person in respect of the contract of transfer and the transferee is also the third person in respect of the obligation between creditor and debtor. These uncertainties make determination of the governing law applicable to actio pauliana so difficult that not many countries have codified the rule of determining such a governing law, including Korea. The purpose of this article is to introduce related legislations and court rulings of other countries for the future study in order to form our own rule to determine the governing law applicable to actio pauliana.