사해행위의 판단 기준에 관한 시론(試論)

The state of affairs concerning the Paulian claim which represents an offspring of the actio Pauliana in ius commune is not very satisfying. One of the causes lies in the emerging discrepancy between law in books and law in action. Doctrine has analyzed the claim’s one condition, a fraudulent transfer of property, into two elements, that is debtor’s over-indebtedness and his/her awareness of it. Case law also follows it at least verbally. However, a close reading of decided cases shows another picture. Here the courts take various circumstances into account in line with Japanese case law. This discrepancy has not even come to mind for many lawyers. To cope with this situation, a new approach of understanding is needed. First, the criterion of over-indebtedness has to be replaced with debtor’s reducing attachable property and hereby harming payment for the contesting creditor(s). Second, the consilium fraudis is not limited to the debtor’s awareness of insolvency, but includes also his/her intention of harming creditor(s), which is though presumed from the former. Third, harming the contesting creditor(s) can occur indirectly, that is, by a transfer of property combined with other circumstances. This new approach explains the case law more consistently than dominant doctrine.