미국연방파산법상 도산실효조항의 효력

Recently, there were several lawsuits arising out of Lehman Brother’sbankruptcy in various countries. They were concerned with the enforcementof ipso facto clauses in insolvency proceedings. There was also a case aboutjoint venture agreement which included an ipso facto clause in Korea in2007. Debtor Rehabilitation and Bankruptcy Act did not include any ruleabout this issue and there was no precedent in Korea. So it was a bigquestion whether ipso facto clauses can be enforced in insolvencyproceedings. Ipso Facto means ‘by the fact itself’. And an ipso facto clauseis a contract provision which states that the contract may be terminated ormodified if either party files a insolvency petition. It is a very common wayto evade the risk of a party’s bankruptcy by using ipso facto clauses incommercial transactions. The enforcement of ipso facto clauses is related to two oppositionalvalues. One is the principle goal of insolvency regime, debtor’sreorganization and equality of distribution. And the other is freedom ofcontract. So the problem about enforcement of ipso facto clauses in theinsolvency proceedings means to set the limitation between purpose of theinsolvency law and freedom of contract. To decide whether ipso factoclauses are valid, this thesis tried to find the extent of insolvency law andfreedom of contract by studying the U.S. Bankruptcy Code and cases. There are two representative statutory law about ipso facto clauses in theU.S. Bankruptcy Code. One is section 541(c) which is concerned withcreating the bankruptcy estate. The other is section 365(e)(1) concerning thetrustee’s authority to choose between assuming and rejecting executorycontracts. Section 365(e)(1) of the U.S. Bankruptcy Code states that ipsofacto clauses are unenforceable in bankruptcy, with certain exceptions. Theseexceptions provided in section 365(e)(2) are the contracts cannot performedby the third parties and the financial accommodations.