이혼시 재산분할청구권 보전을 위한 사해행위취소권의 피보전채권

• 영문명: The Preserved Creditor's Rights to Revoke for Division of Matrimonial Property on Divorce
• 발행기관: 한국가족법학회
• 저자명: 신정민(Shin, Jung-Min)
• 간행물 정보: 『가족법연구』家族法硏究 第29卷 3號, 263~298쪽, 전체 36쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2015.11.30

영문 초록

Civil Act of Korea has adopted separate matrimonial property system. However, it also grants one party of marriage the right to claim the division of matrimonial property against the other party in case of divorce. Claim for property division is the right of one party of marriage who does not have the title to the property (which was achieved during marriage through the co-operation of the couple) to divide it. Before the Article 839-3 of the Civil Act was introduced, there was no protection measure for the holder of this right when the title holder of the property already disposed of his/her property before divorce with the purpose of obstructing the right of the other party to claim for division. The Civil Act amendment in 2007 introduced “Creditor's Right to Revoke for Division of Matrimonial Property” under the Article 839-3. The Article was intended to put an end to the controversy whether the right to revoke fraudulent act can be exercised in order to preserve the right to claim property division that is not yet confirmed in its scope and details. However, the Article 839-3 merely stipulates that the Article 406 is applied mutatis mutandis, leaving the requirements, scope, and the effect of the exercise of the right open to interpretation. Right to claim for property division can only occur with the settlement of divorce. Meanwhile, the intention of the Article 839-3 is to grant the right to claim for property division before the divorce is settled. That leads to the need to review how specified the right to claim for division should be at the time of the fraudulent act. This study maintains that, in line with the legal reasoning for the exception on the time of the establishment of the claim, it is highly probable that the claim is established when there is a marriage breakdown. And the decision for the divorce and matrimonial property division case should be either already settled or be delivered on the day the argument for “Creditor's Right to Revoke for Division of Matrimonial Property” is closed at a fact-finding proceeding.

목차

Ⅰ. 들어가는 말

Ⅱ. 제839조의3에 의한 사해행위취소권에서 피보전채권으로서의 재산분할청구권

Ⅲ. 재산분할청구권의 성립시기와 제839조의3에 의한 사해행위취소권의 행사시기

Ⅳ. 맺음말

키워드

이혼시 재산분할청구권 채권자취소권 재산분할청구권 보전을 위한 사해행위취소권 피보전채권 Division of the Matrimonial property on divorce Creditor's right to revoke Right to revoke fraud act Preserved Creditor`s Rights