사해행위취소로 인한 원물반환의무가 이행지체되는 경우 전보배상 - 대법원 2024. 2. 15. 선고 2019다238640 판결

In the previous case of this judgement the transfer of shares was recognized as prejudice to the creditor, the beneficiary was ordered to acquire shares in substitution and to return them to the revoking creditor, but the beneficiary didn’t fulfill this restitution, and the revoking creditor sought compensation for delayed performance. The appeal court ruled that the revoking creditor had set a reasonable fixed time for the return of the share, but the beneficiary had failed to fulfill the obligation within the time limit, therefore the requirements for compensation was fulfilled. On the contrary, the Supreme Court restricted the compensation for delayed performance to the case, in which the restitution becomes impossible or significantly difficult on the ground that the obligation of restitution as a result of revocation by creditor can’t always be evaluated as normatively equivalent as a compensatory damages for delayed performance. In the result, the reason why the Supreme Court has required the impossibility to return the original objects as a requirement for the compensatory damages for delayed performance seems to be based on the consideration that it should not be easily recognized, because it would allow the revoking creditor to have a de facto priority, just like in the case of the compensation for value. However, given that the principle of creditor equalitarianism is rare in comparative law, and that it would be contrary to equity to allow other creditors to enforce against the returned property at the revoking creditor's own expense and effort, it is not clear why the revoking creditorss de facto priority should be suppressed. It would not be necessary to extend the principle of creditor equalitarianism to the intermediate area where de facto priority has been recognized by interpretation of the law.