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KCI등재 학술저널

債權者取消權의 行使 方法과 詐害行爲 取消의 效果

대법원 2019. 3. 14. 선고 2018다277785, 277792 판결

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This is a review of the Supreme Court’s decision of March 14, 2019, 2018da277785, 277792. The decision states, “When a plaintiff makes a certain claim against the defendant on the premise that he has acquired ownership through a legal act, the defendant can argue that the legal act should be revoked as a fraudulent act, at the same time, can claim the revocation of the legal act and restitution of that ownership’s original status as a counteraction. … In that case, if the court judges that the counteraction claim is reasoned and issues the revocation of the fraudulent act and the restitution of that ownership’s original status, even if the judgment on the counteraction claim has not been finalized, it can be judged on the basis of the revocation of the legal act that caused the plaintiff to acquire ownership. At that time, the plaintiff’s claim can be dismissed on the grounds of that decision.” Through this article, however, I clarified that the judging of that decision is contrary to established precedents and majority opinion on the following three points. (a) The obligee’s right of revocation under Article 406(1) of the Civil Act may only be exercised by lawsuit, but not by counter-arguement. (b) The revocation of a fraudulent act shall take effect only when the decision to revoke is finalized. (c) Even if any legal act is revoked by a decision as a fraudulent act, the revocation does not negate the effect that the beneficiary acquired the right, such as ownership.

Ⅰ. 緖

Ⅱ. 判例?多數說의 要旨

Ⅲ. 檢討〔評釋〕

Ⅳ. 結

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