채권자취소권에 관한 민법개정안

Proposed Amendments to the Korean Civil Code on the Obligee’s Right of Revocation-On the Suggested Basic Framework of the Amendments and Related Topics Discussed by the Civil Law Amendment Committee-

In case an obligor prejudices the obligee by transferring his property to a third party, it is the obligee’s “right of revocation” that entitles the obligee to revoke such fraudulent transaction and to claim restitution. Cases involving the obligee’s right of revocation have been on the increase in Korea from the time the country received an IMF bailout loan during the 1997 financial crisis. The increase in the number of such revocation litigations has led to controversy over the requirements of and the effects of the obligee’s right of revocation. The Korean Civil Code, however, has only two simple provisions stipulating the obligee’s right of revocation; and there are accordingly certain limitations in solving complicated issues concerning the obligee’s right of revocation. The Ministry of Justice Civil Code Amendment Committee, established in 2009, has marked the completion of its work of five years with the plenary session held in February 2014. The most prominent part of the Committee’s work is the amendment on the obligee’s right of revocation, which has provided ten provisions in the Civil Code and a single provision in the Civil Execution Act. This suggests a significant departure from the current system that regulates the obligee’s right of revocation with only two provisions, therefore allowing much room for interpretation in the stage of the application of the law. Some of the newly introduced provisions codify the existing theories and precedents, while others depart from current practices. As a Committee member myself, I was the first person that drafted the amendments on the obligee’s right of revocation. This paper, reflecting my experience as the drafter, introduces the basic framework of and the direction of the amendments and further discusses the amendments in detail, including explanations regarding the requirements of the obligee’s right of revocation as well as the effects of exercising the right to a beneficiary or a subsequent purchaser. This paper also aims to introduce the topics that were discussed in the course of drafting and, further, to present my opinion on these topics. The fundamental function of the obligee’s revocation right is to repudiate a fraudulent transaction and recover the property from the beneficiary or the subsequent purchaser so as to maintain the obligor’s property. Thus, three distinctive values - the need to maintain the obligor’s property for the obligee’s interest, the freedom to dispose of the obligor’s own property, and the need to ensure transaction security – must be kept in balance. In one’s assessment of the proposed amendments concerning the obligee’s revocation right, the crucial question to ask would be whether the amendments would realize such balance among these values. More contemplation on and discussions on this issue will surely lead to a better proposal for the amendments.