이혼시 재산분할청구권 보전을 위한 사해행위취소권의 피보전채권

The Preserved Creditor's Rights to Revoke for Division of Matrimonial Property on Divorce

Civil Act of Korea has adopted separate matrimonial property system. However, it also grants one party of marriage the right to claim the division of matrimonial property against the other party in case of divorce. Claim for property division is the right of one party of marriage who does not have the title to the property (which was achieved during marriage through the co-operation of the couple) to divide it. Before the Article 839-3 of the Civil Act was introduced, there was no protection measure for the holder of this right when the title holder of the property already disposed of his/her property before divorce with the purpose of obstructing the right of the other party to claim for division. The Civil Act amendment in 2007 introduced “Creditor's Right to Revoke for Division of Matrimonial Property” under the Article 839-3. The Article was intended to put an end to the controversy whether the right to revoke fraudulent act can be exercised in order to preserve the right to claim property division that is not yet confirmed in its scope and details. However, the Article 839-3 merely stipulates that the Article 406 is applied mutatis mutandis, leaving the requirements, scope, and the effect of the exercise of the right open to interpretation. Right to claim for property division can only occur with the settlement of divorce. Meanwhile, the intention of the Article 839-3 is to grant the right to claim for property division before the divorce is settled. That leads to the need to review how specified the right to claim for division should be at the time of the fraudulent act. This study maintains that, in line with the legal reasoning for the exception on the time of the establishment of the claim, it is highly probable that the claim is established when there is a marriage breakdown. And the decision for the divorce and matrimonial property division case should be either already settled or be delivered on the day the argument for “Creditor's Right to Revoke for Division of Matrimonial Property” is closed at a fact-finding proceeding.