사해행위로 취소된 양도채권의 원상회복에 따른 제3채무자 보호의 문제 -기판력의 확장을 포함하여- = A substantive and procedural legal issue in case of revoking an assignment of claims as a fraudulent act

다국어 초록 (Multilingual Abstract)

The premise of this paper stems from a concern that when a creditor revokes an assignment of claims as a fraudulent act, despite the 'notice' being given to the third-party debtor as a legal means of substantial restoration, the assigned claim is not effectively restored to the debtor as executable assets. In such cases, the revoking creditor cannot expect any practical effectiveness, as they cannot exercise either the right of subrogation under substantive law or execute monetary claims under procedural law. Therefore, this paper primarily examines how the assigned claims can be restored to the assignor (debtor) as executable assets through the exercise of the right to rescind under substantive law.
In cases involving the assignment of claims, the main issues (in my opinion) are related to debtor protection. This is particularly relevant in cases of payment, payment in substitution, and set-off made by the debtor to the assignee under Articles 451(2) and 452 of the Civil Act. The Supreme Court of Korea broadly interprets the scope within which a third-party debtor can assert the effect of set-off against the garnishing creditor, based on the protection of "legitimate expectation of set-off." This raises the question of whether the effect of debt extinction through set-off should be protected when the third-party debtor exercises set-off against the assignee before the creditor rescinds the assignment of claims as a fraudulent act. Therefore, this paper ultimately examines the conflict between the interests of the rescinding creditor and the third-party debtor in relation to res judicata under procedural law.
As a result, it appears that the most appropriate legal principle for extending the res judicata of the first appellate judgment to the rescinding creditor would be the doctrine of 'successor after the conclusion of pleadings' as discussed in the context of the subjective scope of res judicata.