사해행위가 취소된 경우 수익자의 자주점유 여부 - 대상판결: 대법원 2016. 11. 25. 선고2013다206313 판결 -

The Korean Supreme Court is in the standpoint that the effect of Creditor’sRevocation lies so-called relative effectiveness of the creditor’s revocation system. According to this view, the transferee can still retain the ownership of the propertywhich he or she got through the fraudulent act with the debtor in spite of thecreditor’s revocation, and his or her own property can be acquired throughprescription by him or her self. In addition, the Supreme Court takes up the positionthat the transferee cannot acquire the ownership by prescription because his or herpossession is not what can be the basis for acquisitive prescription. However, it isnot appropriate that one can acquire by prescription the property that he or sheowns. Even though the Court declared in the past that one’s own property could beacquired through prescription by his or her self, actually the cases where the Courtadjudged so were the cases where the Court admitted acquisitive prescription for theproperty that his or she did not completely own. On the other hand, the theory,so-called relative effectiveness of the creditor’s revocation system the Court got canmake a lot of legal problems because, according to that theory, the effect occursonly between the creditor and the defendant, but the restoration of the title to thedebtor cannot explain that situation. For these reasons, Korean Civil code and otherstatutes involved need fundamental amendment about the fraudulent transfer referringto various sources including other nation’s relative laws.