재산분할청구권과 채권자취소권에 관한 연구

A study on Distribution of Property at Divorce and the Revocation by a Creditor

Attempt of insolvent debtor to hinder, delay, or defraud creditors have grown increasingly sophisticated with the development of capitalistic economy. And because the creditors must inevitably rely on the debtor s property, there is a need to protect the creditor from such fraudulent transfers by denying their validity. On the regal characteristic of the revocation, different views have been set forth. According to the relative nullity theory, the debtor has not the standing to be sued, but the beneficiary has. And the beneficiary cannot plead that he will return the liable offset by his claim against the debtor. In these aspects, the relative nullity theory makes the exercise of the revocation easy and has liable property restored effectively. With regard to the standard of judgement of the fraudulent mind, a widely held view is that if the debtor is conscious that could fall in the state of the default due to his legal act, the subjective requisite of the revocation is satisfied.