The fraudulent deed right of cancellation

The fraudulent deed right of cancellation (さがいこういとりけしけん) is the right that a creditor can cancel the juristic act of the debtor based on constant requirements. It is prescribed in civil law Article 424 or less. Or I was said to be 廃罷訴権, but it was written clearly with the fraudulent deed right of cancellation the creditor right of cancellation by civil law revision.

• The rule of the civil law lists only the number of the articles in the following.

Table of contents

General remarks

Text

(the fraudulent deed right of cancellation)

Article 424

1. I can demand the cancellation of the juristic act that the creditor knows that a debtor injures creditor and did from the court. But it is not this limit when I did not know the fact that the person who achieved profit by the act or a change profit person puts it at the time of act or change profit, and should hurt its creditor.
2. The rule of the foregoing paragraph does not apply it about the juristic act not to be aimed for a property right.

Significance

When I buy and sell property of the self while recognizing that a debtor injures creditor according to the situation of a common view, the precedent and do it and decrease it positively, I let a creditor cancels the juristic act in a trial and return property, and it is thought with a system to keep responsibility property (for the property of the debtor who becomes the mortgage when the general creditor who does not have mortgage and a preferential right collects credit) in good condition. About the significance of the fraudulent deed right of cancellation, there is opposition in study in fact.

It comes from actio Pauliana of the Roman law and it is a right of avoidance and the same source in the bankruptcy law, but the right of cancellation is used under (a right of avoidance is given priority to in the bankruptcy procedure), the strict requirements out of the bankruptcy whereas the function comes to have considerably different contents, and a right of avoidance functions in relatively extensive requirements for a public creditor in bankruptcy procedure and functions for the creditor whom I used regardless of a rule of civil law Article 425 practically now.

Application scene

If the responsibility property of the debtor decreases, a creditor is less likely to collect credit. And when a debtor does an act (fraudulent deed) to decrease responsibility property of the debtor unfairly, this act decreases an opportunity of the debt collection of the creditor, and it may be said that I hurt result creditor. In this case, the creditor cancels the fraudulent deed of the debtor and can correct property lost from responsibility property by a fraudulent deed to the responsibility property of the debtor.

For example, I do it when there is creditor X having credit for debtor A and A which are in insolvency state. A has donated it to Y of the relative that there was not valuable property and protected this ancestral land any place other than ancestral land while understanding that I could not pay a debt to X. The property of A decreases, and in this situation X cannot in this way collect one's credit. Therefore X cancels a donation act to Y by the fraudulent deed right of cancellation and lets A return land and I seize this land some other time and auction off it and can collect credit from the auction price.

This is the scene which a fraudulent deed right of cancellation system schedules. A donation act of A is called a fraudulent deed then, and Y donated land to by A is called a beneficiary. Change gets this Z and says with a person when land is transferred to Z more by Y.

Legal character

There is the fight in a theory, the precedent.

• Formative right theory

  The opinion that formative right and a thought, the suit to cancel a fraudulent deed, and to invalidate the act absolutely assume it formation suit.

• Right to claim theory

  Demand the property which I lost without distinguishing recovering right to claim from the right of cancellation, appealing creditor right to claim and a thought is payment suit and an opinion to do.

• Compromise theory

  An opinion to think to have united with the right of cancellation and the recovering right to claim.

Requirements of the right of cancellation use

When I am going to use the fraudulent deed right of cancellation, the following requirements must be met.

Requirements on the creditor side

• As a general rule, the cover maintenance credit must be a pecuniary claim. However, I can use the right of cancellation even if it is specialty goods credit when it becomes the lack of funds by a debtor disposing of the object. Because the specialty goods credit can change to compensation for damages credit in the ultimate, what must be secured by the debtor's property of the debtor is similar to a normal pecuniary claim.
• The cover maintenance credit must be concluded before a fraudulent deed is carried out. Because maintenance of the responsibility property includes the purpose of this system, this is because that'll be enough if I keep the responsibility property in the point in time when credit was established in good condition (because it acquired the credit for the debtor assuming it even if the property loses in weight by the act of the debtor, there is not the inconvenience). If it is credit concluded before than a fraudulent deed, I can use the right of cancellation even if it is the creditor who obtained the credit concerned by transfer later than a fraudulent deed.
• It is not a requirement that the observance of a contract period of the cover maintenance credit comes.
• It is against the theory mentioned above, but, in the business top, it may be judged to be 詐害 all the acts after credit is concluded.

Requirements on the debtor side

• I say that I did a juristic act (fraudulent deed) that a debtor injures creditor, that a debtor becomes the lack of funds (state of so-called insolvency) specifically. As for the lack of funds state, it is necessary to be a lack of funds state at the time of right of cancellation use (at the time of oral proceedings end of the Rechtsinstanz) only at the time of fraudulent deed. When the means of the debtor are restored, I cannot use the right of cancellation. It is a system to protect a creditor, and this is because it is not a system to give sanctions to a debtor.
• The juristic act not to be aimed for a property right is not included in this (Article 424 Clause 2).
• Even if there was a fraudulent deed, the cancellation is not if not performed while knowing that it hurts its creditor (intention of 詐害).

The concrete content of the intention of 詐害 is not constant. It is different every case in consideration of the property of the fraudulent deed. For example, it is said to the act to set the fixed collateral right for a newly authorized creditor about real estate owned by a self though I fall into insolvency that there was "intention of 詐害" if I recognize that it is insolvency because the degree to hurt its creditor is high (最判昭 32.11.1). On the other hand, it is not done when a debtor of the insolvency repays only a particular creditor that there is covin among debtors with the creditor, and there was "intention of 詐害" without strong malicious intent (最判昭 33.9.26).

The example which is considered to be a fraudulent deed

When though I owed it a large amount of money, it was free and donated land and the building which were the only property to somebody.

Though there is not enough property, become a guarantor.

Providing real security to an existing debt (because allotment might not be received other creditors).

As a general rule, the act to sell real estate for the amount of current price equivalency becomes the fraudulent deed (large revelation 44.10.3). To turn into money, and to become easy to be scattered and lost.

As a general rule, the first buyer in the double transfer of the real estate cannot cancel the second sales contract as a fraudulent deed. However, I can cancel it as a fraudulent deed to keep compensation for damages right to claim in good condition when a debtor becomes the lack of funds by the second sales contract (最判昭 36.7.19).

Inheritance division discussion (most seal flat 11.6.11)

The example which was not considered to be a fraudulent deed

The fraudulent deed right of cancellation cannot intend for a notice of assignment of accounts receivable an assignment of accounts receivable act and a limit apart (most seal flat 10.6.12). The opposition requirements possession act does not become a target of the cancellation as such.

The inheritance abandonment (最判昭 49.9.20)

It is unreasonable, and the cancellation is not for the property distribution with the divorce as a fraudulent deed without enough special circumstances against the purpose of the rule of Article 768 Clause 3 unsuitably if I admit that it is the property disposal that makes a pretext of property distribution, and was accomplished (最判昭 58.12.19).

Plea of a beneficiary or the change profit person

If a beneficiary or a change profit person insists on own good will (Article 424 Clause 1 proviso "not having known the fact that should hurt its creditor") and can prove it when a creditor can prove the requirements mentioned above in suit, I cannot use the right of cancellation.

Use of the right of cancellation

• I can use the fraudulent deed right of cancellation only on a trial (the Article 424 Clause 1 text) and will submit cancellation suit as the defendant in a beneficiary, change profit people. I am rejected without being able to accuse a debtor as the defendant even if I file a suit saying that there is not person concerned elligibility, but can let a debtor participate in suit as assistance participation by a beneficiary and the change profit person.
• The range of the right of cancellation use is limited to the amount of credit of the creditor unless it is indivisible credit (large size size 9.12.24). If it accepts cancellation because it is intended to relieve the damage of the creditor as far as it is necessary for the relief, this is because it is necessary and enough. However, because the late charges are expansion of the capital credit; as for the late charges with cover maintenance credit (most seal flat 8.2.8).

When I sell cheaply unfairly in one way or another when mortgage is set on the land, the business concerned becomes a target of the cancellation if there is the recognition of hurting creditor to an opponent and a debtor, but may be to be troublesome when I let you cross mortgage by the price that you delivered by the right business when the mortgage that should have disappeared once if I recognize cancellation in all revives. In such time, a price will compensate it by taking the form to accept cancellation about the remainder that subtracted the amount of cover security credit from value of the land (最判昭 63.7.19).

Effect of the right of cancellation

• As for the effect of the right of cancellation use, to the profit of the total creditor and the cancellation creditor cannot receive repayment given priority (Article 425).
• When the act of the debtor is canceled by the fraudulent deed right of cancellation, money will be corrected from a beneficiary or a change profit person by a debtor. However, there is not a meaning to receive even if returned for a debtor and may refuse the receipt because I am used to pay a debt immediately even if I come back to the hand of the debtor once. Therefore it is admitted that I deliver it to the creditor who used the fraudulent deed right of cancellation in the case of a pecuniary claim directly (large size size 10.6.18). The creditor bears a debt to return the money that I received from a beneficiary (or a change profit person) to the debtor then, but can receive virtual priority repayment by offsetting the credit that this debt and self have. On the other hand, about the specialty goods credit (specialty goods delivery return right to claim) such as the real estate, I do it when I remain in returning erasion of the registration of a transfer that is the registration to the debtor to be aimed for maintenance of the joint mortgage of the total creditor (最判昭 53.10.5).
• The effect of the judgment occurs only between a beneficiary with a creditor. It is inferior to the debtor who did not participate in suit (because the debtor does not act as "the person concerned" saying to Civil Proceedings Act Article 115 Clause 1 beyond the existing seal power).

I it during a use period of the right of cancellation

The extinctive prescription of the fraudulent deed right of cancellation is two years since a creditor knew the cause of the cancellation. At time 20 years after time of the act, I become extinct (Article 426). For these 20 years, it is a common view to assume Ausschlussfrist.
The extinctive prescription does not progress if I do not know that there is 詐害意思 even if a creditor knows the objective fact of 詐害.

Allied item

• Right of subrogation by obligee
• It is a right of avoidance (in the bankruptcy method)

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