사해행위취소소송 결과 원상회복된 채무자의 부동산소유권과 취소채권자의 소유권이전등기말소청구에 대한 고찰 - 대법원 2017. 3. 9. 선고 2015다217980 판결에 대한 평석

The Supreme Court changed its existing judgement in substance on March 9st 2017 by the sentence 2015DA217980 Judgement. The effect of revocation is only relatively effective in the relationship between a creditor and a beneficiary. It does not affect the legal relationship between a debtor and the beneficiary. Even if the real estate sales contract between the debtor and the beneficiary is canceled by the obligee’s right of revocation and the recovery of the original status by cancellation of the beneficiary’s registration, the real estate is treated as the debtor’s liable property between the creditor and the beneficiary under 407 of the Civil Act. However, the debtor does not acquire property directly and become a right holder. According to the relative validity of the case, if the registration of transfer of ownership of the beneficiary name is canceled, the debtor is restored to the full owner. The Supreme Court has virtually created new rights. In the extension of the existing attitude of the Supreme Court, The 2015DA217980 Judgement can be understood. It is necessary to get rid of the stubborn interpreting theory of Numerus Clausus Der Sachenrechte. And unless the act of disposition for the obligor’s property of which original status is restituted fulfills the necessary conditions specified in Article 406, it is considered that the obligee, etc. who applied for revocation has no claim for cancellation of registration against a third party according to Article 406. But the 2015DA217980 Judgement state the obligort acquire a certain right for the revoked property of the obligor directly. In my opinion, All rights should be protected by a prohibition claim(Injunction). The 2015DA217980 Judgement can be understood.