사해행위 성립 여부를 판단함에 있어서 물상보증인이 공동저당목적물로 제공한 책임재산의 평가 대법원 2016. 8. 18. 선고 2013다90402 판결을 중심으로

The assessment of executable property offered by a guarantor in rem held as joint hypothec in judgment for revocation of fraudulent act can be categorized into two theories. The balance theory suggests that the secured claim amount of the guarantor in rem’s real estate property is the amount remaining after the joint mortgagee receives its share of distribution when the debtor’s real estate is sold in advance. The assignment theory argues that where a joint mortgage is created, the secured claim amount has to be assigned in proportion to the amount equivalent to the value of each of the real estate pursuant to Article 368 of the Korean Civil Code. It is necessary to reconcile the protection of the interests of general creditors with freedom of the right to exercise rights by the owner of joint hypothec. Also, it is improper that the determination of whether to accept the claim for revocation of fraudulent acts depends on the random circumstances of whether distribution of the succeeded property to obligee was made concurrently or asynchronously. As such, it is appropriate to posit that in the case of the concurrent distribution, the secured claim amount of the real estate owned by the guarantor in rem has to be calculated in a manner ensuring that distribution is made preliminary from the debtor’s real estate property. As such, the subject case (Supreme Court Decision 2013Da90402 decided Aug. 18, 2016), which adopted the balance theory pursuant to Supreme Court Decision 2008Da41475, is reasonable.