채무자의 파산⋅면책이 채권자취소소송에 미치는 영향- 대법원 2008. 6. 26. 선고 2008다25978 판결에 대한 비판적 검토 -

In its recent judgment the Korean Supreme Court has negatively replied to the problem, whether the creditor is permitted to revoke fraudulent transfer from the debtor to the beneficiary regardless of the discharge for the debtor, when the creditor is no longer subordinated to the bankruptcy procedure. The following commenter to this judgment has critically analyzed its grounds as well as its conclusion. Under the judgment lies the idea, that the secured claim has gone into a discrepancy due to the discharge and the beneficiary could resort to the right of debtor to waver the revocation of the transfer. Such an argument attributes, the author insists, to an formalistic approach. He offers the opposite opinion to the judicature. To make his suggestion persuasive, he compares the two rights systems in the perspective from the natures and aims of the respective right. The arguments, on which this article is based on, are as follows: First, from the perspective of policy of law it is consistent to Korean law system to maintain the dual system of revocation: The one is the trustee’s right to avoid fraudulent transfer provided by Korean insolvency law, the Debtor Rehabilitation and Bankruptcy Act: and the other the creditor’s right to revoke the transfer contract presented by the Korean Civil Law. Second, to prohibit the creditor from exercising his right to revoke the transfer contract would be inconsistent to the restricted effect of discharge. Third, as only the assets, that at the time of the opening of the bankruptcy procedure should have been existed, fall within the scope of the creditor’s revoking, it is no harmful to any person concerned to allow the creditor his right. Finally, it is very natural to permit the creditor to exercise his right, as long as the requirements prescribed in Section 406 of Korean Civil Law are fully matched with.