상속포기의 사해행위 취소와 부인

• 영문명: Disclaimer of Inheritance as Fraudulent Transfer
• 발행기관: 한국가족법학회
• 저자명: 윤진수(Yune Jin Su)
• 간행물 정보: 『가족법연구』家族法硏究 第30卷 3號, 183~236쪽, 전체 54쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2016.11.30

영문 초록

There are cases where insolvent heirs disclaim inheritances by which they can pay their debts. May these diclaimers be avoided as fraudulent transfers? Recently, the Korean Supreme Court ruled that such a disclaimer could not constitute a fraudulent transfer. There are two grounds supporting this position. Firstly, the disclamer of inheritance has a restrospective effect, that is, the disclaimer should be treated as if she/he was not a heir from the beginning. So the disclaimer cannot be a transfer in legal sense. Secondly, the decision to disclaim is a personal resolve that should be respected by law. However, these reasonings are not persuasive. The restropective effect of the disclaimer (so-called relation-back doctrine) is a mere legal fiction. It cannot be denied that the inheritance belongs to the disclaimant at the time of deceased’s death. And the autonomy of the disclaimant cannot override the legitimate interests of the creditor. Especially, article 386 of the Korean Bankruptcy Code prescribes that the disclaimer of inheritance which preceded the bankruptcy commencement decision has only the effect of the acceptance with reservation, if the disclamier was made after the bankruptcy commencement decision. This provision implies that the disclaimer of inheritance before the bankruptcy commencement decision should not be sustained, if it were fraudulent. So, if the disclaimer of inheritance which harms the legitimate interests of the creditor should be avoided as a fraudulent transfer by the creditor or trustee.

목차

Ⅰ. 서론

Ⅱ. 종래의 논의

Ⅲ. 비교법적 고찰

Ⅳ. 이론적 검토

Ⅴ. 보론 - 상속의 포기가 도산절차에 미치는 영향

Ⅵ. 결론

참고문헌

Abstract

키워드

상속 포기 사해행위 채권자취소권 부인권 채무자회생법 독일 도산법 오스트리아 도산법 Disclainer of Inheritance Fraudulent Transfer Avoidance Power Korean Bankruptcy Code German Banktruptcy Law Austrian Bankruptcy Law