채무자에 대한 파산선고와 채권자취소권

Both the creditor's right of avoidance and the right of denial share the common feature of denying the effect of the debtor's property-related legal acts to secure assets for liability. However, the former is a means for satisfying the individual creditor's claim, whereas the latter is a right regulated as a collective legal relationship for the benefit of all bankruptcy creditors. Once bankruptcy proceedings are initiated against a debtor, individual bankruptcy creditors cannot satisfy their claims outside of the bankruptcy process, and the same applies to the satisfaction of claims through the exercise of the creditor's avoidance right. Accordingly, Article 406 of the Debtor Rehabilitation and Bankruptcy Act stipulates that once a bankruptcy order is issued against a debtor, lawsuits filed by bankruptcy creditors for the exercise of the creditor's avoidance right are suspended until the conclusion of the bankruptcy proceedings. However, it does not separately regulate cases where the creditor's avoidance lawsuit has already concluded and an enforcement order for restoration has been issued before the commencement of the bankruptcy proceedings. Moreover, the ineffectiveness of compulsory execution to satisfy bankruptcy claims as stipulated in Article 348, Paragraph 1 of the Debtor Rehabilitation and Bankruptcy Act governs execution against the bankruptcy estate and therefore cannot be directly applied to the satisfaction of claims through the creditor’s right of avoidance. Therefore, it is necessary to focus on the commonalities between a creditor's right of avoidance and the right of disallowance, and to explore ways to adjust the rights obtained by a bankrupt creditor through the exercise of the right of avoidance against the debtor before the declaration of bankruptcy to align as much as possible with the post-bankruptcy order. To this end, a method has been suggested in which the probate administrator succeeds to the claim for restoration arising from the exercise of the creditor's right of avoidance and utilizes it as a means to increase the bankruptcy estate. However, since the right of avoidance and the right of disallowance are separate rights with different requirements and effects, it is difficult to reach such an interpretation without separate legislation. Therefore, it is necessary for the probate administrator to employ a method that blocks the individual enforcement by the creditor seeking avoidance through objections to the execution of the restoration claim and enhances the bankruptcy estate by exercising the right of disallowance.