부동산의 가압류채권자가 가압류 후에 그 부동산에 관하여 이루어진 채무자의 물상보증행위를 사해행위로서 취소할 수 있는가

대법원 2010. 1. 28. 선고 2009다90047 판결

Recent bunch of cases by the Korean Supreme Court makes a good example of apparent incoherence of frudulent transfer law outside bankruptcy proceedings in Korea. One case holds that, when a debtor fixes a security interest for another person’s debt in her property, on which provisional attachment was executed by one of her creditors before the fixing, the creditor of the debtor cannot avoid the fixing of security interest as fraudulent transfer because the creditor is not harmed by the act. Two years later, the Court decided that the debtor can avoid the security interest as fraudulent transfer because the debtor, in general, could be harmed by the debtor’s action. Several months later after the second case, on the same fact pattern, the court held that the debtor’s action is per se fraudulent transfer. Some scholars understand the Court’s theory as like this: the attachment creditor cannot avoid the creation of the security interest when the debtor gives the security for his own debt, whereas the creditor can avoid when the debtor does it for another person’s debt. The author disagrees with this understanding of the law. Although the attachment creditor can have the pro rata share from the property in the same rank as the security holder, she still can attack the transfer as long as she is not fully satisfied by the public auction of the property. Therfore, the law(albeit dicta) of the first case was wrong viewed against the second and third cases. The issue of the second case is different from that of the third case. The second case was about who could be the claimant, whereas the third case was about whether the fixing the security interest for another’s debt was avoidable as the fraudulent act. Creating the security right for her own debt is preference, whereas doing the same thing for another person’s debt is fraudulent act. When the debtor does not receive adaquate value for the creation and is insolvent at that time, the act could be voidable as the act causes harm to the general creditors.