채권자취소권의 준거법에 관한 연구 – 대법원 2016. 12. 29. 선고 2013므4133 판결과 관련하여

Actio pauliana in South Korea has characteristics of both the substantive right and the procedural right, and has many connecting factors such as the creditor’s claim to the debtor, the transferring contract and the transferred asset, which makes it difficult to determine its governing law. Historical and comparative study shows that actio pauliana in South Korea is basically a substantive right in Civil Act, which is similar with that of France, Germany and Japan. However, unlike France or Germany, the revocation of fraudulent conveyance is effective for the benefit of all creditors as well as the creditor exercising the right, and therefore, more emphasis should be laid on the fraudulent conveyance and recovery of assets than on the creditor’s original claim. Under the above analysis, lex fori should not be the governing law of actio pauliana as a substantive right. Among many substantive connecting factors, law governing the creditor’s claim has less connection than law related to the fraudulent conveyance and recovery of assets. Among factors related to the fraudulent conveyance and recovery of assets, the Supreme Court decided that the law governing the contract between the debtor and the transferee should be the governing law of actio pauliana. However, lex contractus cannot prevent debtors from choosing a law that makes exercise of actio aupliana difficult or impossible, while lex situs gives enough predictability and cannot be easily manipulated by the debtor. In that regard, lex situs should be the governing law of actio pauliana.