채권자취소권의 상대적 효력과 원상회복

Our legal system’s creditor’s right of revocation operates in a structure that produces the effects of (1) canceling the fraudulent act → (2) restoring to the original state → (3) benefiting all creditors, and this contrasts sharply with most foreign legal systems, which do not separately provide for steps (2) and (3). In other words, while our law recognizes relative effect for step (1), it in practice recognizes absolute effect at steps (2) and (3). Comparing this with foreign systems that overall adhere to relative effect, this has led to disharmony or contradictory results. In this article, I first conclude that it is appropriate to interpret the effect of cancellation of a fraudulent act as “invalidity grounded in liability law”. This interpretation has legitimacy because: you cannot simply equate cancellation under creditor’s right with ordinary cancellation of juristic acts; it faithfully reflects the essence and original purpose of the creditor’s right of revocation; the Supreme Court’s relative-invalidity approach is in substance not different from this; and major foreign jurisdictions take a similar attitude (interpretive argument). Under this view, the meaning of “restoration to the original state” must also be reinterpreted. Traditionally, doctrine and case law have understood it as “actually returning the diverted asset to the debtor” (the so-called positive restoration theory), but it is doubtful whether there is an inevitable reason for such an interpretation. Restoration to the original state, consistent with the purpose of the system, can be understood as “restoration of enforceable assets,” and this interpretation harmonizes with Civil Code Article 407, the Civil Execution Act Article 187, etc. (the so-called denial of original-state restoration or deemed restoration theory). Even leaving the diverted property in the beneficiary’s name (or possession), the cancelling creditor can enforce against it. In this way, enforcement becomes much clearer than under the traditional “relative invalidity + restoration” approach, without producing factual or legal problems (interpretive argument). According to this logic, one might think that the Civil Act’s “restoration to the original state” provision in Article 406 has no independent meaning. Therefore, it is necessary to revisit the functions and roles that the original restoration provision has played. I will address this and discuss legislative solutions in a later paper.