채권자취소권의 준거법에 관한 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 that were 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, on the one hand, and the relationship between the debtor and the transferee, on the other hand. On the contrary, the relationship between the creditor and the transferee is not so clear it its nature 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. This article discussed what should be the rule of determining the governing law of actio pauliana and concluded that the law of the place where the fraudulent transfer was made should be the governing law in that actio pauliana is the right generated not by the contract, but by the law.