채권자취소권에서 원물반환 불능시 가액배상과 대상청구권: 원상회복으로 말소 확정된 근저당권이 경매로 말소되어 배당되는 경우의 법리 - 대상판결: 대법원 2012. 6. 28. 선고 2010다71431 판결

The target judgment(2010da71431) held that if a creditor who canceled a fraudulent transfer obtained judgment for the return of the original property, so won the case, and then the mortgage or lien, which is the original property, was deleted or canceled due to an auction, and dividends at execution were paid to the beneficiary, the creditor would be recognized as having the right to substituting the original property and could seek the return of the dividend. Even though our civil law system permitted “the right to claim compensation for value” or “money judgment” as a typical remedy for the creditor’s right to cancel the fraudulent transfer, it is unreasonable to recognize the right to claim substitution. In particular, the right to claim restoration for property transferred fraudulently is only a claim recognized by the status of the revocation creditor, and cannot be regarded as a claim that is the original claim, so it is difficult to qualify for the exercise of the right to claim substitution. It also goes against the purpose of judgment that denied the right to claim. In addition, in terms of the effect of exercising the right to claim substitution and the right to claim compensation for value, it is difficult to simply recognize the right to claim in lieu of the right to claim compensation because with each right compared, specific differences are recognized, such as the effect of allowing transfer of a claim. Fundamentally, while supplement relationship between the return of original property and compensation for value, the supreme court's decision which did not allow claim for compensation for value after the return of original property became impossible, so that the beneficiary could still retain the value through fraudulent acts. Since there is a problem in not making changes in decisions, it seems reasonable to change the view to allow a lawsuit for compensation for value by the creditor after the return of the original material becomes impossible.