건설회사에 대하여 회생절차가 개시된 경우의 법률관계

First, for a debtor company to win construction works ordered by the government, it is important to obtain the confirmation of its rehabilitation plan at least. If the rehabilitation proceedings commence after the execution of the construction contract, the trustee may choose between assumption and rejection of the contract in accordance with the principle of laws relating to executory contracts. In that case, there arise controversies as to whether the claims for payment of the completed construction works are rehabilitation claims or common-interest claims respectively when the rehabilitation proceedings are commenced with respect to the contractor or the subcontractor. The Civil Code has special provisions for cases where the contractor goes bankrupt, while the Debtors Rehabilitation and Bankruptcy Act (“DRBA”) has special provisions for cases the subcontractor goes bankrupt. Pursuant to the Fair Transactions in Subcontracting Act, if the principal contractor goes bankrupt, the subcontractor may directly claim for the construction price against the employer, which is not contrary to the principle of equality under the Constitution. The courts have rendered that the foregoing laws apply even in case the principal constructor files an petition for rehabilitation proceedings, but I do not agree. The legal identity of a joint venture is an association and thus a joint supply contract between members does not construct an executory contract. In case any member of a joint venture goes bankrupt, such is in principle a reason of its legal withdrawal, and thus a provision restricting withdrawal under the standardized joint supply contract is invalid and a provision providing for refund of investment after completion of works even if a member withdraws is also invalid. If defects are found in the completed building, the claim right for damage arising due to defects taking place before commencement of rehabilitation proceedings shall be reasonably treated as rehabilitation claims, and on the other hand, claim right for damage arising due to defects taking place after commencement of rehabilitation proceedings shall be reasonably treated as common-interest claims. It is the existing theory and court precedents that the right to claim reimbursement which a defect warrantor has against the reorganization company after the defect warrantor repairs defects for the benefit of the employer in accordance with the warranty clauses after commencement of the rehabilitation proceedings of the construction company is to be treated as rehabilitation claims since it is exercised in the future. Nevertheless, it is erroneous that the Supreme Court, assuming that the right to claim reimbursement is subject to completion of defects repair after commencement of the reorganization proceedings, treats such reimbursement claim as subordinate claim. Japan cleared away the existing confusion by amending its Civil Code and Bankruptcy Act in case a party to a subcontract goes bankrupt and thus it is necessary to reflect such progress on the amendment of the DRBA.