채권자취소권의 행사와 효과에 관한 관견(管見)

The Korean Civil Code allows the creditors to contest the insolvent debtor’s fraudulent transfer of property (its art. 406). The state of affairs concerning this claim which represents an offspring of the actio Pauliana in ius commune is not very satisfying. According to doctrine and case law, the contested fraudulent transfer is declared to be ineffective in relation to the qualified creditors. This interpretation, however, now brings about a number of contradicting judicial decisions in practice. In spite of some suggestions de lege ferenda, a reform is not to be expected any time soon. This article tries to tackle this problem by way of a new theory which introduces the concept “ineffectiveness in liability only” (haftungsrechtliche Unwirksamkeit). It critically examines the opinions propagated so far, reinterprets the basic structure of the Paulian claim and constructs a harmonious system of various results in line with the claim’s policy. To conclude, a better solution is achieved by permitting the creditors to directly execute in the fraudulently transferred property. The Paulian claim therefore generates the effect that the very property in the transferee’s hands is subjected to the creditors’ legal measures which, mutatis mutandis, follow the rules about judicially enforcing security interests in rem. A special action which asks for tolerating the execution is not necessary for this purpose.