상속포기에 대한 채권자취소권 인정 여부 검토

Recently, the Supreme Court acknowledged that an agreement on the division of inherited property may be subject to a creditor's right of avoidance, while reaffirming its prior position that renunciation of inheritance is not subject to that right. However, if the applicability of the creditor's right of avoidance depends on whether the heir chooses to renounce the inheritance or to enter into a division agreement, this could lead to unreasonable outcomes for creditors. Therefore, it is necessary to examine whether it is appropriate to uniformly deny the fraudulent nature of the renunciation of inheritance. This paper first summarizes the general principles of renunciation of inheritance and the creditor's right of avoidance, and then compares foreign legislative examples to clarify that the position on the fraudulent nature of renunciation of inheritance may vary with each country's legislative policy. In Korea, the negative view is the majority opinion, and case law also follows this position; however, recently, the compromise view has emerged as a practical solution. The compromise theory seeks to resolve the issues arising from the rigid application of the affirmative and negative theories, proposing instead that judgments be made based on the specific circumstances of each case. Accordingly, the interests of creditors and the freedom of debtors must be balanced, and various factors, including the criteria outlined in case law, must be considered. To supplement the somewhat abstract criteria proposed by the compromise theory and case law, the author proposes a three-step standard. In the first stage, objective factors such as the proportion of the inherited property and the economic circumstances of the heirs are examined. In the second stage, the temporal relationship between debt incurrence and the renunciation of inheritance is considered. In the third stage, subjective factors such as whether there was collusion among heirs are reviewed. Through this step-by-step approach, it is believed that the fraudulent nature of a renunciation of inheritance can be assessed more reasonably.