채권자취소권에 대한 고찰 - 민법 제2조에 기초한 새로운 해석가능성을 중심으로

• 영문명: A Study on the Creditor’s Right to Rescind the Debtor’s Contract with a Third Party under Section 407 of the Korean Civil Code with Special Focus on the Possibility of a New Interpretationunder Section 2 of the Korean Civil Code
• 발행기관: 한국재산법학회
• 저자명: 손종학(Sohn Jong-Hak)
• 간행물 정보: 『재산법연구』財産法硏究 第24卷 第2號, 183~206쪽, 전체 24쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.10.30

영문 초록

  Although the Korean Civil Code provides for the creditor"s right to rescind the debtor"s contract with a third party under section 407, it had long been underutilized until financial institutions began to exercise such right as a means of preserving the debtors" property during the 1997 Korean Foreign Exchange Crisis. Accordingly, its increased use has attracted attention from legal scholars since then. However, in reality creditors have the difficulty in fully exercising the right under sections 406 and 407 due to several legal problems. This Article aims to suggest theoretical solutions to these problems, which are summarized as follows.
  First, it is needed to use section 2 of the Civil Code (principle of good faith) as a new legal basis for the creditor"s right to rescind. Although the creditor"s right to rescind is commonly understood as one of the legally-created creditor"s rights such as those rights based on torts and unjust enrichment, this observation can make sense because it is certainly arguable that debtors have the sincere duty to conserve their own property in the creditors" interests under the principle of good faith.
  Second, the object of the creditor"s right to rescind need not be limited to the creditor"s claims to the debtor under the original contract, but rather must be extended to all of the debtor"s property. Additionally, the creditor"s right must include a right to affirmative injunction. This new interpretation can be more fully harmonized with the overall scheme of the Civil Code.
  Third and lastly, it is needed to recognize the creditor"s right to directly demand the withdrawal of movables and money from a third party, with a proviso that the creditor should not be allowed to dispose of reclaimed movables and money to satisfy her claims to the debtor against the interests of other creditors. And it is desirable to induce creditors to take advantage of the performance deposition system under section 487 of the Civil Code.

목차

Ⅰ. 서론
Ⅱ. 채권자취소권의 의의
Ⅲ. 민법 제407조의 의미와의 관련 문제
Ⅳ. 결론
참고문헌
〈Abstract〉

키워드

채권자취소권 신의성실의 원칙 법정채권 원상회복 변제공탁 Creditor’s Right to Rescind Debtor’s Contract with a Third Party Principle of Good Faith Legally-Created Creditor’s Rights Affirmative Injunction Performance Deposition