저당권설정계약이 사해행위로 취소된 경우의 법률관계

The Supreme Court has developed a special theory regarding the method of restoration in cases where a lien was established through a fraudulent act but the mortgage registration was canceled due to the progress of the auction procedure. That is, the cancellation of the fraudulent act and the satisfaction of the claim through it should also be achieved through the previous auction procedure. Accordingly, a person who has failed to obtain the satisfaction of his/her claim from the proceeds of the sale of the auctioned object, such as by not requesting distribution during the execution procedure in progress with respect to the object of a fraudulent act, shall be deemed not to be able to obtain the satisfaction of his/her claim from the restored deviant property, regardless of whether he/she is a cancellation creditor or a general creditor. However, this conclusion is difficult to reconcile with the attitude of previous case law regarding the prospective effect of a judgment to cancel a fraudulent act and the interpretation of Article 407 of the Civil Act. In the previous enforcement procedure, the property subject to distribution and the liable property restored to their original state through the judgment of cancellation of the fraudulent act are separate foundations, and the interested parties in them should also be considered different. The creditor's right of rescission is a system for a rescission creditor to seek the return of profits obtained by a beneficiary through a fraudulent act, and is not a system for restoring the distribution order that should have been originally recognized with respect to the object of the fraudulent act.