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A critical Study on condition of Actio Pauliana

  • DONG-A LAW REVIEW
  • 2012, (56), pp.257-288
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Han,Sam-In 1,  Kim, Sang-Hun 2

1제주대학교
2광주고등법원

Accredited

ABSTRACT

Actio Pauliana is a right of creditors to repeal debtors’ act and to replace a joint mortgage with debtors’ properties when they try to reduce their own property with a purpose of undermining a joint mortgage. Actio Pauliana is a effective means to secure joint property for creditors, but on the other hand, can harm third parties in good faith when they can not bring forth evidence for their good will. Therefore a serious review on whether the interpretation of prerequisite of Actio Pauliana is constraining the right of debtors and third parties related is required in the context of balance between creditors’ interest and transaction safety. In this thesis, theories and recent cases related with Actio Pauliana are discussed and critical opinions are also presented. When debtors’ bad will is proved, and third parties’ bad will is presumed accordingly, verification of third parties’ good will is not easy in litigation. Therefore third parties’ bad will should only be presumed when they had explicit willingness to harm creditors. Property depature act is becoming more intelligent as our industries are getting sophisticated and transactions associated also varied. To solve cases as mentioned above, scrutinization into case by case is needed to prevent third parties’ unexpected loss. Therefore whether prerequisite for Actio Pauliana is satisfied should be based on the dualistic theory and third parties’ bad will should be examined in a different point of view.

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