채권자취소권 행사 시 수익자·전득자의 인식상태에 관한 증명책임의 분배에 대한 소고

Under Korean civil case law, when a debtor prejudices a creditor by transferring his property to a third party, the creditor has a right to revoke such fraudulent transaction and claim restitution. Based on the opinion of the Supreme court of Korea, the third party has to prove his good faith, unawareness in other words, in order not to be deprived of the property he acquired in case the creditor seeks revocation and restitution against him. The law imposing burden of proof on the third party is not only unreasonable, but also unfair in a sense that (1) there is no logical ground that the court can assume the third party had a bad faith in most cases; (2) it is almost impossible for the third party to prove unawareness or good faith, which is equivalent to the nonexistence of the unspecified fact; (3) it is hard to expect that the third party has the knowledge on the debtor’s financial status; (4) it is not always clear whether the transaction caused debtor’s insolvency or not; and (5) the legal system that makes creditor easy to revoke the transaction can compromise social and economic stability. Despite the needs for the correction, it is not that simple to change the law because it is based on the peculiar structure of the relevant Korean Civil Code provisions. But fortunately, many law professors and lawyers are voicing to change the provisions, and the Ministry of Justice has also prepared the draft for the amendment upon the provisions. Unequal status between the creditor and the third party that subsists in the field of revocation of fraudulent transaction must be properly adjusted as soon as possible through the prompt amendments to the Korean Civil Code.