미이행쌍무계약에 관한 우리 도산법제의 개선방향

This article points out certain problems arising out of the current Debtor Rehabilitation and Bankruptcy Law ("DRBL") or its interpretation and application in practice in connection with the four issues - i.e., validity of ipso facto clauses, termination of a contract based on breach of contract due to a court's preservation order prohibiting repayment of debts, special treatment of continuous supply contracts and termination of executory contracts by a receiver or bankruptcy trustee - which are related to the treatment of so-called executory contracts that forms basis of contractual relationships governed by the insolvency proceedings, and proposes the directions for improving the insolvency law regime of Korea. Firstly, with respect to the validity of ipso facto clauses, the author analyzes the Supreme Court's judgment rendered in 2007 which is the first court judgment in Korea on such issue and the related scholarly views in comparison with the relevant insolvency law regimes of the United States and Japan. Then, the author draws a conclusion that by interpretation, a bankruptcy termination clause included in an executory contract should, in principle, be held invalid under Korean law and proposes that in order to remove the legal uncertainty which has been created in practice on this issue, new statutory provisions be promulgated in line with the author's said conclusion. Secondly, with respect to the termination of a contract by the counterparty creditor in rehabilitation proceedings based on the debtor's breach of contract due to a court's preservation order prohibiting the repayment of debts, this article points out that although a Supreme court's judgment rendered under the previously abolished Composition Law and the current court practice take the position that such termination is valid, such position should be reversed since it has a problem in terms of legal theory and causes a significant impediment to successful rehabilitation of a debtor through rehabilitation proceedings. Further, this article emphasizes the significance of this issue particularly in connection with the current movement toward introducing in the DRBL the concept of an automatic stay in a limited scope and proposes that this issue be resolved by legislation. Thirdly, with regard to Article 122, Paragraph 1 of the DRBL which restricts the supplier's defense of concurrent performance under a continuous supply contract even before the commencement of rehabilitation proceedings, the author points out that the meaning of a continuous supply contract is not entirely clear under the DRBL and based on a comparative law analysis, such provision of the DRBL overly restricts the rights of the creditors who are suppliers. Thus, the author suggests that improvement be made by legislation or by establishing guidelines of the courts in practice. The author further proposes that in the meantime, a defense of insecurity available under the relevant substantive law which governs the supply contract needs to be recognized broadly enough to protect the rights of the supplier. Finally, this article points out that the rights granted to the counterparty in the event of termination of an executory contract by a receiver or bankruptcy trustee under the DRBL is insufficient to protect the counterparty's interests and reviews and analyzes the proposal made by a prior study which recommends introducing the concept of rejection under the United States and German bankruptcy laws to better protect the counterparty's rights. Then, in lieu of adopting such proposal that will require fundamental changes to the current DRBL, this article suggests an alternative method to enhance the protection of the counterparty's rights. The author hopes that the discussions in this article will contribute to the efforts which are being actively made for improving the insolvency law regime of Korea.