파산관재인의 채권자취소소송 수계와 가액배상의 범위 – 대법원 2024. 5. 9. 선고 2023다290492 판결 –

The scope of avoidance of a fraudulent transfer is, absent special circumstances, limited to the amount of the claim held by the revoking creditor, and when restitution is made in the form of monetary compensation, the compensation amount is likewise restricted to that creditor’s claim amount. The lower court held that this principle regarding the scope of monetary compensation in a creditor’s revocatory action also applies equally to an avoidance action. However, the Supreme Court Judgment 2023Da290492, rendered on May 9, 2024, rejected this view. While both the creditor’s right of revocation and the right of avoidance share the same purpose—namely, to cancel or deny the effect of acts detrimental to creditors and to restore the diverted common collateral in order to protect creditors—the right of avoidance is exercised with the specific aim of restoring the debtor’s general property that has been diverted, thereby securing resources for repayment to bankruptcy creditors, etc. Therefore, there is no need to limit the effect of avoidance solely to the extent necessary to restore the excess of liabilities over assets. Moreover, the right of avoidance is exercised by the bankruptcy trustee in the course of duty, with the authority to manage the bankruptcy estate and dispose of its property, to restore to the bankruptcy estate assets diverted by the avoidable act, thereby ensuring the integrity of the bankruptcy estate. Thus, the scope of exercising the avoidance right should, in principle, be regarded as encompassing all property constituting the common collateral, which aligns with the purpose of the system. Accordingly, when a bankruptcy trustee succeeds to a creditor’s revocatory action, converts it into an avoidance action, and the court upholds the trustee’s avoidance claim and recognizes restitution by means of monetary compensation, the scope of monetary compensation cannot be considered limited to the amount of the claim held by the creditor who initially filed the revocatory action. This judicial stance is appropriate.