채권자취소의 가액배상채권에 대한 채권강제집행 - 대법원 2017. 8. 21.자 2017마499 결정에 대한 평석 -

The Supreme Court Decision 2017Ma499 (August 21, 2017) approved a garnishment order on a claim for monetary compensation arising from a creditor’s revocation claim, to satisfy a monetary claim held by the creditor of the revocation claimant. This presupposes that the claim for monetary compensation forms part of the revocation claimant’s property subject to compulsory execution. This article challenges that view, arguing under the principles of the relative effect of a creditor’s revocation claim and the equality of creditors (Civil Act Article 407) that such a claim does not constitute part of the revocation claimant’s liable assets, thereby rendering the compulsory execution in that decision invalid. The paper then considers how enforcement courts should deal with such invalid garnishments and what appellate remedies are available to the parties involved. It argues that, although substantive grounds generally do not justify an immediate appeal, both the revocation claimant and the obligor of monetary compensation may appeal on the ground that the monetary compensation claim is not part of the revocation claimant’s liable assets, whereas the debtor in the rescinded transaction and other creditors of the revocation debtor lack a legitimate interest in appealing. Finally, the article examines whether an obligor of monetary compensation who holds a separate claim against the revocation claimant may set it off against the compensation obligation. It concludes that such a set-off should not be permitted, as the claims are not mutually opposing, the protective function of set-off is unnecessary, and allowing it would unfairly place the obligor of monetary compensation in a more favorable position than in cases where restitution in kind is made through revocation.