장래채권 양도담보와 회생담보권의 효력이 미치는 범위 - 대법원 2013. 3. 28. 선고, 2010다63836 판결 -

Korean Supreme Court recently decided a case which shocked the security assignees of future claims in Korea. The Court held that the claims acquired after the commencement of the Reorganization process are not subject to the assignee’s security right, because the debtor in the shoes of the bankruptcy trustee was so called “public trustee”, which means different legal entity from the debtor. The author disagrees with this holding. First, the bankruptcy trustee(or DIP in this case) stands in the shoes of the debtor after the commencement of the case. Althought the bankruptcy trustee or DIP takes control of the business and the debtor’s assets, it does not mean the subject of the rights changes. Because the bankruptcy trustee or DIP acts in the shoes of the debor, the results of their legal actions belongs to the debtor. Therefore, if the debtor assigned the future claims for security and fulfiled the requirements for asserting that right to third persons and then gone banrkrupt, the claims after the commencement of the case are subject to the security assignor. Second, the holding contradicts with the Article 124 section 1 of the “the Law of Debtor Reorganization and Bankruptcy.” This article presuppose the the security holder of the future rent claims could not be prejudiced by the bankruptcy proceedings at least for the next period’s rent after the commencement of the case. Third, the holding discriminates the debtor with the trustee from the debtor without one in cases of individual bankruptcy. If all of the after-aquired property are subject to the scurity holder, the debtor’s reorganization could be very difficult. This problem needs to be addressed, not by the Court, but by the Congress.