채권양도가 사해행위로 취소되는 경우 원상회복 후의 법률관계 - 대상판결 : 대법원 2015. 11. 17. 선고 2012다2743 판결 -

The relevant judgment handles the methods of restoration in case a transfer of the claim has been canceled and thereafter, the legal relations among the parties concerned after the restoration. According to the logic of the current judicial precedents adopting ‘the theory of a relative void’, the debtor shall not acquire the claim personally even if the beneficiary notifies the third debtor of the canceled transfer of the claim as a measure of restoration. Such logic of judgment is deemed valid. However, the core of the relative void theory is that the claim would be attribute to the debtor’s chargeable asset in the relation between creditor and beneficiary. Although the debtor’s own assets and chargeable asset can well be distinctive, the judgment that the creditor cannot request the third debtor to pay the claim on behalf of the debtor, which is not deemed desirable. In case the transfer of the claim is canceled as a deceptive act, the claim would be attributed to debtor’s chargeable asset, the creditor should be allowed to exert the subrogation right of creditor to preserve his/her chargeable asset. And then, the creditor’s subrogation right may well be used as simplified debt collection system. Fundamentally, in order to resolve the confusion due to the theory of a relative void, a legislative determination is required. Like the US case, the creditor should be allowed for a compulsory execution on beneficiary’s assets, while the theory of the relative void be maintained. Otherwise, as in case of Japan where the theory of the absolute void is adopted, the creditor should be allowed to cancel debtor’s deceptive act, file a suite with the court on behalf of the creditor and at the same time, apply for the preservative measure.