채권자취소권 행사의 제척기간에 관한 판례의 동향 = A study on the precedents about exercising period of a debtee"s revocation right

다국어 초록 (Multilingual Abstract)

  A lot of insolvent obligations have been produced since the economic crisis. In the process of collecting debt, Banking facilities and creditors have increased rapidly lawsuits for the revocation of the fraudulent or wrongful acts against debtor"s assets already conveyed to others. In our civil law, there are only two provisions and requirements and effects leave to the interpretation of a court. Especially, 406 provision- 2 clause indicated the period of action for the revocation of the fraudulent act is limited; the right of action could be exercised within one year when the creditor knew the cause of action, within five years from the day when doing legal actions. While there is no argument that the nature of the period is considered the period of prescription, the period is too short compared with the period in other legislations. To limit the period of action prevents the bona fide purchaser from lawfully unstable status for a long time.<BR>  The day when the creditor knew the cause of action, one year period, is the matter of the creditor"s mind and there are arguments what kinds of creditor"s action would permit to apply this clause. After the economic crisis, the lawsuits for the revocation of the fraudulent or wrongful acts have been increased and there is no other ways but proving the debtor"s good faith. The overruling of the original sentence has been increased because the court has lately extended the range of the clause to permitthe fraudulent or wrongful acts.<BR>  Consequently, this article examined that the short-term period of prescription would begin at which stage of assets inquiry and the process of collecting debt from debtor, based on the Supreme court case, related cases of lower court, and cases in Japan. The recent decision of the Supreme Court suggests the standards of judgment; ① whether the creditor is an individual who has no access to the debtor"s assets or financial institutions that run inner rules and a special team for insolvent obligations or have the right of information access, ② according to the amount of the creditor ③a perception of special relation with the debtor and the beneficiary.<BR>  The Supreme court ruled that the creditor knew the cause of revocation if the creditor, banking facilities, investigated the debtor"s assets based on the rule of management for credit after occurring the default. Thus, this decision gave some meaning. For the right of the creditor"s revocation, the court"s trend is that the court permits the creditor broad right to take back the amount of the creditor from the debtor"s asset and tries to come to an early conclusion to protect stable transactions.

목차 (Table of Contents)

• Ⅰ. 들어가는 글
  Ⅱ. 채권자취소권 행사기간의 의의
  Ⅲ. 채권자가 ‘취소원인을 안 날’의 의미
  Ⅳ. "법률행위가 있은 날"의 의미
  Ⅴ. 맺는 말
  참고문헌
  〈Abstract〉
  

참고문헌 (Reference)

• 1 "통정허위표시를 한 자의 파산관재인이 민법제108조 제2항의 제3자인지 여부" 2004.6
• 2 "채권총론(신정수정판)" 박영사 1999
• 3 "채권자취소권행사의 제척기간의 기산점" 서울북부지방법원 2004
• 4 "채권자취소권의 행사방법-부동산이 전전양도된 경우를 중심으로 민사재판의 제문제" 한국사법행정학회 6 : 1990
• 5 "사해행위취소의 소에 있어서 제척기간의 기산점인 ＂채권자가 취소원인을 안 날＂의 의미" 법원도서관 2001
• 6 "민법주해" 박영사 1995
• 7 "매매예약의 사해행위성 여부" 법률신문사 (2581) : 1997
• 8 "債權法の基本構造" 信山社 ll : 1997