In case where a debtor reduces the liable properties, knowing the damages to the creditor, the creditor may maintain and protect the mutual securities of its obligatory right by collecting the omitted properties due to the debtor's such act, from the ...
In case where a debtor reduces the liable properties, knowing the damages to the creditor, the creditor may maintain and protect the mutual securities of its obligatory right by collecting the omitted properties due to the debtor's such act, from the debtor's general properties, according to the Civil Law Code 406.
Although the creditors' annulment lawsuits were rare so far, they have been greatly increased since the financial crisis in 1997. Their reference scope is being extended to the extent in which although there seem no changes in the debtor's property status, in case it gets not to meet the obligatory rights, the supreme court consistently decides as fraudulent act as long as there is no special reason in the debtor's property disposal act for its only properties that is provided for the sales, payment in substitution and real security in the excessive obligation status.
To prevent the company financial crisis, associated worries for the fragility of financial institutions and social collapse, the creditor's annulment system was greatly recognized in the context to the public fund input, as the essential security device to protect the financial institutions and systems based on the credit society beyond the protection issue for a certain creditor individual.
It is very natural to deprive properties from such fraudulent acting acquirer without any cost, but in case the beneficiary paid the price to acquire or contributed after the acquisition, to give the beneficiary the unconditional redemption and blocking the collection will substantially requiring the excessive sacrifice to the beneficiary for the favor of creditor. Moreover, in case the creditor annulment system weighs the protection of the creditor, it can not only overly limit the debtor's execution of the property rights but also impede the safety of the transactions by unresting the beneficiary and the third party acquirer's status. Therefore, it is important to find out how to harmonize with the freedom of property management act and safe transactions of the beneficiary and the third party acquirer.
In this regard, the supreme court's decision falls on the 'special reason' discussed in the precedent that in case any debtor already in the excessive obligations provides its real estate to anyone of the creditors as the security, such act is considered as the fraudulent act in the relationship with other creditors as long as there is no special reason. In this case, the debtor in the difficult situation to proceed its business due to the financial problem provided the real estate to the specific creditor for the purpose of the regeneration and received the new finance, it is clearly accepted that the debtor's security right setting act does not fall on the fraudulent act, reflecting the position of the creditor protection, safe transaction and beneficiary protection.
In the court decision on whether the new fund loan for the purpose of the generation is to be cancel as the fraudulent act, there is the need to examine the part whether the management determination principle of the Anglo-American Law may be applied to the requirements of the creditor's annulment rights with respect to the responsibility of the directors in terms of not to interfering with the debtor's property management under the respect for the debtor or beneficiary's specific decision.
The commercial law theory, the management determination principle indicates that even in case the wrong management determination by the director causes the damages to the company in result, when such management determination was performed under a certain requirements ensuring the rationality, it is not possible to ask for the director's responsibility for the violation of the care duty by afterwards interfering with such determination. This principle performs the function for the active management contributing to the company development rather than the passive management by the directors. This intent may be applied as a standard to evaluate the debtor's act because we cannot decide it as the fraudulent act retroactively by considering afterwards that such act could not bring the increase in the obligation payment ability by the situation and result occurred after such act in case of the debtor's legal acts such as the property disposal act increasing the debtor's liable property rather than decreasing.
The supreme court's decision indicates, at the time of the new fund loan for the purpose of the regeneration, the debtor's providence of the real security does not fall on the fraudulent act, which came from the position in trying to harmoniously interpret the intent of the creditor's annulment rights as the protection of the general creditors, safe transactions and freedom of the debtor's legal act. Such application should be extensively applied even to the sales of the property and payment in substitution in which the same logic consequences are made, as well as in the real security providence, the precedent case issue. As the creditor annulment system sacrifices the third party who did not directly trade with the creditor for favor of the creditor, when accepting its execution, it is required to make efforts in order to draw the specific validity by carefully weighing between the strengthened power of the obligatory rights, the freedom of the property management act and social interests of the safe transaction property.