적정가격에 의한 매각의 사해행위성에 관한 고찰 - 대법원 2024. 12. 12. 선고 2024다275773 판결에 대한 검토

Examination on the fraudulent activity of sale at reasonable price

When a debtor in a state of insolvency sells property, even if the sale is made at a fair price, it is often for the purpose of concealing or consuming assets. If such acts are not considered fraudulent conveyances, creditor protection would be insufficient. therefore, presuming fraudulent intent is reasonable. However, such an interpretation could undermine transactional security, so it is necessary to broadly recognize the good faith of the transferee and subsequent acquirer in order to safeguard the stability of transactions. A sale at a fair price does not confer economic benefit upon the transferee, and thus, unlike other fraudulent conveyances, the transferee’s bad faith cannot be presumed. The good faith of the transferee or subsequent acquirer is, under the statute, presumed or treated as a matter of defense, and the burden of proof rests with them. Nevertheless, if circumstances demonstrate that the transferee is not in a special relationship enabling knowledge of the debtor’s financial situation, the transferee should initially be regarded as acting in good faith. Even where the transferee could know of the debtor’s financial condition, if the transferee took sufficient measures to prevent the removal of assets from the debtor’s estate—such as paying the purchase price directly to another creditor instead of to the debtor—the transferee’s good faith should be acknowledged. For a sale at a fair price to be deemed a fraudulent conveyance merely because the proceeds were used for a collusive repayment between the debtor and another creditor, the repayment itself must constitute a fraudulent act, and the repayment and the sale must be evaluated as a single, unified act. In such cases, the transferee should be presumed to be in good faith with respect to the collusion between the debtor and the creditor receiving repayment.