사해행위취소에서 원상회복청구권

This study analyzes the legal framework governing the claim for restoration following the revocation of fraudulent acts, with a particular focus on the case law of the Supreme Court of Korea. The Court generally explains the effect of Article 406 of the Civil Act on the basis of the theory of relative invalidity, while at the enforcement phase over the restored property it simultaneously embodies the creditors’ equality principle under Article 407, thereby allowing other ordinary creditors of the debtor to participate immediately. However, when restoration occurs not through restoration in kind—the primary method—but through monetary compensation as an exception, the revoking creditor(avoiding creditor) may set off its claim, which renders such participation practically impossible and in effect produces a de facto preferential distribution. These doctrinal tensions mark several points of inflection in the Court’s development of the law governing restoration. The first part of the article analyzes restoration in kind, focusing on the legal implications of restoring registration of real property in the debtor’s name and its implications for the principle of the creditors’ equality principle, with particular attention to the Supreme Court decision of 17 November 2015 (2013Da84995), which appears to adopt a somewhat exceptional stance. It also critically reviews the Court’s decisions addressing the legal status of the beneficiary’s creditors when restoration in kind has been effected, most notably the decision of 11 June 2009 (2008Da7109). The second part explores monetary compensation, tracing the trajectory of the Supreme Court’s rulings on cases in which restoration in kind becomes impossible or significantly difficult after the claim for restoration in kind has first been exercised, with reference to a sequence of decisions—7 December 2006 (2004Da54978), 28 June 2012 (2010Da71431), and 15 February 2024 (2019Da238640). These decisions demonstrate considerable doctrinal effort for justification, which appears to reflect judicial awareness of the structural tension between the theory of relative invalidity and the creditors’ equality principle, as well as the structural imbalance between restoration in kind and value compensation, and the resulting judicial inclination to permit value compensation only restrictively. Although interpretive efforts to reach substantively reasonable results within the framework of existing doctrine continue, the accumulated doctrinal complexity indicates that a structural legislative reform—rather than further case-by-case doctrinal adjustment—may ultimately be required.