머리말

이 책은 필자가 채권자취소권에 대하여 쓴 글들을 모아 한 권의 책으로 구성한 것이다. 이전과 마찬가지로, 공간된 논문을 단순히 모은 것이 아니 라 이 주제에 대한 체계적인 단행 연구서가 될 수 있도록 편집과 수정을 가 하였다. 바탕이 된 글들은 비교적 단기간에 일관된 구상 하에서 작성된 것 이었기에, 이를 모아 하나의 모노그라프로 만든 일은 학술적으로 의의가 있 다고 생각된다. 다만 여기에서도 인용된 문헌을 모두 최신의 판본으로 업데 이트하는 작업은 그 수고에 비하여 의미가 크지 않다고 판단하여 하지 않았 다. 다만 이후 공간된 재판례에서 중요한 것을 본문에 반영하였다.

필자는 언젠가부터 채권자취소권의 현황에 직면하여 상당한 정신적 고통 을 느껴 왔다. 제1장의 문제 제기에서도 언급하고 있는 “성공적이지 못한 법형성과 그 이면에 있는 학설의 무기력”이 우리 민법학과 민사실무의 어 떤 약점을 드러내 보이고 있다고 느꼈기 때문이다. 그러나 필자 자신에게 당장 이러한 불만족스러운 상태를 타개할 만한 좋은 아이디어가 없었기에, 채권자취소권은 계속해서 필자에게 당혹과 자책을 일으키는 원인이었다. 그 러던 중 2019년 법학전문대학원에서 ｢독일사법｣이라는 강의를 담당하면서 하나의 비교 대상으로 채권자취소권을 고르고 그 준비를 위해 독일 문헌을 읽는 과정에서, 필자는 채권자취소권과 관련해서도 비교법학에서 배울 수 있는 사고의 단서를 많이 놓치고 있었다는 사실을 깨달았다. 그리고 이후 프랑스 문헌을 살펴보며 이를 다시 확인할 수 있었다. 이때 받은 자극은 이 후 머리에 남아 우리 민법을 토양으로 하여 싹을 틔우고 뿌리를 내렸으며, 지금 여기 수록된 내용으로 성장하였다.

이 책에서 제안된 주장과 그 근거에 대해서는 찬반양론이 있을 수 있을 것이다. 그러나 적어도 그동안 우리 학계와 실무의 논의에서 반복되었던 내용과는 다른 새로운 관점에서 채권자취소권에 관한 해석 및 입법에 접근하 고 있다는 사실은 자부하고 싶다. 그리고 적어도 필자는 이 책의 제안에 따 를 때 우리 학설과 판례를 괴롭히고 있는 채권자취소권에 관한 다수의 문제 들이 설득력 있게 해결될 수 있다고 확신한다. 부디 이 책이 다른 법률가들 의 이해와 공감을 얻을 수 있기를 희망할 뿐이다.

2025년 1월 

김  형  석

목차

제1장 문제의 제기

I. 도입 ··········································································································· 9

1. 성공적인 법형성의 표지 ············································································ 9

2. 채권자취소권의 경우  ·············································································· 10

3. 연구의 필요성 ·························································································· 14

II. 이 책의 주제와 구성 ············································································ 14

제2장 사해행위 개념의 재구성

I. 사해성 판단에 관한 통설과 재판례 사이의 괴리 ································ 19

1. 사해성 판단에 관한 기존 설명 ······························································· 19

2. 이원적 기준과 재판례 사이의 괴리 ························································ 20

3. 요약과 평가 ······························································································ 27

II. 사해성 판단에 관한 해석론적 제안 ····················································· 30

1. 두 개의 새로운 개념 규정과 하나의 새로운 개념 ································ 30

2. 구체적인 적용 ·························································································· 38

III. 전망 ······································································································ 42

제3장 채권자취소권의 행사와 효과

I. 사해행위 취소의 효과에 관한 기존 학설의 평가 ································ 45

1. 취소 및 원상회복의 상대적 효력와 그 난점 ········································· 45

2. 기존 학설에 대한 비판 ············································································ 51

3. 책임설에 대한 재검토 ·············································································· 56

II. 책임설에 따른 사해행위 취소 ······························································ 63

1. 행사와 효과 일반 ····················································································· 64

2. 원물반환의 방법 ······················································································· 67

3. 가액반환 ···································································································· 74

4. 수익자의 고유채권자에 대한 관계 ·························································· 75

5. 제407조의 효력을 받는 채권자 ······························································· 83

6. 수익자의 구상 ·························································································· 83

III. 부인권이 행사되는 경우 원상회복 ······················································ 84

IV. 전망 ······································································································ 85

제4장 채권자취소권의 개정 방향

I. 입법론적 과제 ························································································· 89

II. 채권자취소권의 요건 ············································································· 91

1. 사해행위 일반 ·························································································· 91

2. 수익자의 보호: 수익자의 주관적 요소와 무상행위 ····························· 100

III. 채권자취소권의 행사와 효과 ····························································· 103

1. 통설 · 판례 및 기존 개정안에 대한 평가 ············································· 103

2. 새로운 입법 모델의 채택 ······································································ 108

제5장 요약과 개정 제안

I. 본문의 요약 ·························································································· 127

1. 사해행위의 판단 ····················································································· 127

2. 채권자취소권의 행사와 효과 ································································· 128

3. 입법론 ····································································································· 129

II. 개정 제안 ····························································································· 130

참고문헌 ································································································· 133

사항색인 ································································································· 139