債權者取消權의 要件에 대한 再解釋

A Reinterpretation of condition on the Creditor s Right of Revocation

The creditor s right of revocation is a system that a creditor intervenes the legal act of a debtor for the purpose of ensuring his own right effectively and that he would deny a debtor s act of fraudulence and attempt to restore the property of his duty. Up to now, the majority opinion has distinguished objective factors from subjective factors as the element of the creditor s right of revocation. According to the theory, it is investigated separately whether it is satisfied or not to distinguish objective element from subjective one. If we would, however, follow the dualistic system of revocation elements according to the majority opinion, it is very difficult to conciliate reasonably conflict of interest between parties about the creditor s right of revocation as well as to explain the various types of the existing fraudulent acts harmoniously. To overcome the limit about the dualistic system of revocation s elements, it is necessary to reconstruct the system. I would like to suggest the uniform concept of a fraudulent conduct that it should be decided by considering the intention of fraudulence as well as the harmfulness of fraudulent conduct whether the conduct is harmful or not. The intention of debtor doesn t mean not “the legal act which is harmful for the right of property , but “the legal act which is the conduct knowing harmful for the right of property . Namely, the character of fraudulent act is perceived not only the evaluation of balance sheet for the status of the debtor s properties but also the fraudulent intention of the debtor s and the several subjective and objective elements of that right. Therefore, we should follow the theory of mutual relation, which is recognized synthetically and correlatively, for example, the status of the debtor s property, the existence of conspiring with the beneficiary, the degree of importance for the aim property, the shape and the mean s justification of the debtor s act and the easiness of forcible execution. The theory of mutual relation could be generally adopted because it is possible to interpret the character of fraudulence Flexibly.