채권자 취소소송에 있어서 취소채권자의 사실상 우선변제권과 민법 제407조의 관계 -대법원 2008. 6. 12. 선고 2007다37837 판결을 중심으로-

When the obligee’s right of revocation leads to the annulment of fraudulent transactions and the claim for restoration to the original state, if the return of the original item is impossible or exceptionally difficult, monetary compensation can be made as a substitute for restoring the original state. In this case, the cancelling obligee has the right to claim monetary compensation from the beneficiary or the successor. On the other hand, since Article 407 of the Civil Code stipulates the principle of equality for all obligees, the cancelling obligee does not have a priority claim on this monetary compensation. However, court rulings have indicated that while the cancelling obligee does not have legal priority, they effectively have priority in actuality, as other general obligees cannot claim a share of this monetary compensation. This conclusion is sometimes viewed as effectively nullifying the principle of equality for all obligees established by Article 407 of the Civil Code. Some scholarly opinions argue that the issue arises because the law does not specify the procedures for distributing monetary compensation and suggest that such procedures should be established to resolve the problem. Court decisions also suggest that if legal procedures under laws such as the Civil Execution Act were specified, these issues might be resolved. However, the fundamental reason for the practical priority problem lies in allowing the cancelling obligee to claim monetary compensation despite the principle of equality for all obligees stipulated in Article 407. In other words, the issue of practical priority is not merely a matter of securing distribution procedures but involves the scope of the effects of cancellation. In contrast to the French and German legal systems, which recognize a priority right for cancelling obligees, Japanese law, which adopts the principle of equality for all obligees, provides many insights. Specifically, Japan has amended its Civil Code to abandon the previously accepted theory of relative nullity and ensure that the effects of cancellation extend to the debtor. This has resulted in a mechanism to keep the practical priority rights of cancelling obligees in check. While it is challenging to completely abolish practical priority rights in order to provide an incentive for ‘cancelling obligees’ to engage in litigation, Japan’s approach of extending the effects of cancellation to the debtor should be adopted. This would allow other obligees, in addition to the cancelling obligee, to potentially receive a share of the monetary compensation according to the cancellation. This approach would bridge the logical gap between the theory of relative nullity adopted by current court rulings and the principle of equality for all obligees in Article 407 of the Civil Code, and realize a method of monetary compensation in line with the effects of cancellation as stipulated by Article 407.