채권자취소소송 실무와 상대적 무효설에 관한 논의

With regard to the validity of the creditor's right to revoke, the Supreme Court has adopted for a long time the theory of relative void, which means that any fraudulent transfer is void only between the plaintiff (the creditor) and the defendant (the transferee or the subsequent transferee), and still valid among the others, i.e., the debtor, the other creditors who have not participated in the revocation suit. The majority of scholars agree with the aforementioned ruling of the Supreme Court. Once the fraudulent transfer has been revoked, the creditor may get reimbursed through the compulsory execution process on the retrieved property from the transferee to the debtor, according to Civil Execution Act. The original property shall be put under the name of the debtor in order to commence the compulsory execution on the property. Meanwhile, the theory of relative void has lack explanation on how the original property may be retrieved under the name of the debtor because the debtor's fraudulent transfer is still valid in relations to the debtor and the others. Under the theory of relative void, in case that the assignment of claim is revoked as a fraudulent transfer, it might be blocked getting reimbursement by the creditor even though he or she would win the revocation suit because the assignment of claim (the revoked transfer) is still valid between the debtor and the transferee, so the debtor cannot have the monetary claim against a third party, that means the creditor cannot have any object to seize to get reimbursement. For the sake of the effectiveness of the revocation suit, in the aforementioned case, the Supreme Court has held that the creditor may seize the debtor's monetary claim against a third party in spite of the logical contradiction with the theory of relative void. The Supreme Court Decision 2002Da33068 rendered on September 24, 2002 ruled that it was NOT allowed to seize the debtor's monetary claim against a third (depository) due to the theory of relative void in the case where, as restoration followed by revocation, the right to demand for distribution against a third (depository) shall be assigned from the transferee to the debtor through the compulsory execution against claims. Instead of the complusory execution against claims, the Supreme Court ruled that the creditors may get reimbursed through demanding additional distribution. If adhere to the theory of relative void, the conclusion of 2002Da33068 seems logical, but it would be more desirable if the legal ground of additional distribution which might be applied to the aforementioned case in 2002Da33068 would be created in the Civil Execution Act. Furthermore, in 2002Da33068 the Supreme Court ruled that it IS allowed to seize the debtor's surplus claim against the depository, and the transferee (mortgagee) cannot demand the distribution as the creditor having the claim for preferential payment) because the transfer between the debtor and the transfee has been revoked, which, I would like to point out, are logically inconsistent with the theory of relative valid.