채권자취소권의 법적 성질과 원상회복청구 문제

On the obligee’s right of revocation, Article 406(1) of the Korean Civil Act stipulates that the obligee may apply to the court for revocation of fraudulent act and restoration of its original status. There is much debate in Korea as to the nature of the obligee’s right of revocation, and depending on how one views it, nature of the action, defendant of the action and the effect of judgement vary. The obligee’s right of revocation is considered as the right to preserve and maintain the joint collateral (executable property) for the obligees’ compulsory execution. In addition to the claim for revocation, the reason why the claim for restoration of original status is deemed necessary is that the property, occupied by or registered in the name of the beneficiary after the revocation of the fraudulent act, cannot be forced into execution unless they are returned to the obligors. Article 424 of the Japanese Civil Code, after which Article 406(1) of the Civil Act is modeled, only prescribed the filing of a claim for revocation of fraudulent acts, and there were various discussions regarding whether the filing of a claim for restoration of the original status could be made after the revocation. The Japanese theories and precedents generally acknowledged the filing of such a claim. At the time of the enactment of the Korean Civil Act, the drafters recognized the revocation of fraudulent acts and restoration of the original status by accepting Japan’s theories and precedents. Originally, Article 424 of the Japanese Civil Code was based on the theory of invalidation under Article 1167 of the French Civil Code before its revision on France’s action paulienne, which means to cancel and nullify fraudulent acts, corresponding to revocation of legal act in Korea. Thus, revocation in Article 406 of the Civil Act should be regarded as stipulating the right to cancel fraudulent acts. As the Korean civil law takes formalism with regard to the change in property rights, the revocation of a fraudulent act, which is a legal act, does not guarantee the recovery of the property right that was previously transferred to the beneficiary to the obligor, but rather, the obligor only has the right to make a claim for the return of unjust enrichment. The obligees, depending on whether the claim for the return of unjust enrichment pertains to immovables, corporeal movables or claims, may request to the court for the issuance of an order of seizure against the transfer of the immovables, corporeal movables, or claims owned by the obligor. And the obligees do not have to request the separate restoration of original status against the obligor by exercising the right of subrogation. Furthermore, Article 406 of the Korean Civil Act provides for restoration of the original status in addition to a claim for revocation. The said Article follows declaration theory on the change of property rights in the Japanese Civil Code, which was applied at the time of the enactment of the Korean Civil Act, prior to the introduction of the compulsory execution procedure against a claim for the transfer of the enriched object. Now that the situation has changed, such a claim for restoration is considered unnecessary.