채권자취소권에 관한 민법 개정안 연구

Study on the Draft of the Korean Civil Code Amendment on a Fraudulent Transfer

The Korean Civil Code (hereinafter “KCC”), which was first enacted back in 1960, is a fundamental norm governing legal relationships among private entities. Since the enactment of the KCC, Korean society has experienced drastic changes in various aspects. However, the KCC has never been comprehensively amended up to now. Against this backdrop, there has been a constant call for the comprehensive amendment of the KCC. In response, the Ministry of Justice has carried out an ambitious legal project of amending the KCC since 2009. As of January 2014, the final amendment draft is about to be completed. This article aims to address major changes envisaged in the draft specifically concerning a fraudulent transfer. The draft reflects detailed legal doctrines regarding a fraudulent transfer developed by the courts and the legal academia, and attempts to minimize legal uncertainty by presenting detailed rules on many issues, thereby increasing the number of provisions from two to ten. The draft intends to enhance coherence and consistency between bankruptcy law and civil law. In its efforts to synchronize both fields of law, the draft follows the rules set forth in the Debtor Rehabilitation and Bankruptcy Act by presuming the intention of a transferee on fraudulency of the transfer only when the transferee is in special relationship with a debtor (Draft Article 406②), distinguishing between a transfer for value and a gratuitous transfer (Draft Article 406-2), and putting separate provisions regarding the legal position of a transferee and the second transferee (Draft Article 407-5, 6). The draft also aims to strike a proper balance between a creditor and a transferee as well as among creditors. For example, the draft places the burden of proof on the intention of a transferee on a creditor rather than on a transferee (Draft Article 406①), while shifting such burden on a transferee when he or she is in special relationship with a debtor (Draft Article 406②). The draft, in case of recovering money from a transferee, allows all creditors to raise their claims during the period of 3 months while allowing the avoiding creditor to satisfy his or her claim first when there is no competing claimant appearing during the above period (Draft Article 407-4, Draft Civil Execution Act Article 248-2). Although there may be pros and cons of the draft, it is indeed a sign of noteworthy achievement after lengthy efforts to incorporate proper solutions to numerous legal issues on the fraudulent transfer. It remains to be seen whether or not this draft will finally be enacted in the near future. Yet, the draft itself is certainly worthy of being reviewed from an academic point of view even before its enactment.