미국법상 사해행위의 취소와 부인에서 수익자의 선의 항변

This paper is a short review of the standard of the transferee’s good faith defense to avoidance of fraudulent transfer in the US law. In Korea, the transferee should prove her or his good faith. However, in many other jurisdictions, the creditor who wants to avoid the fraudulent transfer should prove the transferee’s bad faith. Only Japan and the USA impose the burden of proof to the transferee. According to the Uniform Voidable Transactions Act, a transferee that took the object in good faith and for a reasonably equivalent value given the debtor can assert the good faith defense in case of the actual fraudulent transfer. The federal Bankruptcy Code also recognizes the good faith defense of the transferee. There are 2 standards regarding the meaning of the good faith. The subjective standard focuses on the actual mindset of the transferee. In contrast, the objective standard should be applied using not only the actual knowledge and information that a transferee had, but also the knowledge and information that a reasonably prudent person should have had under the circumstances. A majority of federal courts have held that good faith must be determined according to the objective standard. Other courts adopted the subjective standard. Still others note that good faith has both objective and subjective components. This debate can be suggestive for the Korean law. From the perspective of legislation, the law should be changed to allow the creditor to avoid the fraudulent transfer if she or he proves that the transferee knew or ought to have known that the transfer was fraudulent. Under the current law, the court should investigate the good faith of the transferee more substantially.