미국 파산법상 Strong-Arm 조항과 편파행위에 관한 연구 - 채무자회생법과의 비교 -

There are various different elements regarding the trustee’s avoidance power between the Debtor Rehabilitation and Bankruptcy Act (the DRBA) and U.S. Bankruptcy Code. First, DRBA classifies the types of avoidance into three categories, such as avoidance of fraudulent conveyance, avoidance during the gap-period and avoidance of gratuitous transfer, whereas the U.S. Bankruptcy Code provides two types of the avoidance right such as in cases of fraudulent conveyance and preferential transfer. Secondly, DRBA, in principle, allows only the trustee to avoid the transfer done by a debtor, prior to the commencement, while under the U.S. Bankruptcy Code avoidable transfer could be done by a debtor as well as creditors. In the U.S., security interests attach when a debtor and a secured creditor agree on the contract; the secured creditor gives value; and the debtor acquires rights in the collateral. The secured party, however, is required to perfect its security interests to achieve its maximum priority. The most and often used clause in the U.S. Bankruptcy Code for the trustee to use avoidance power is the Section §544(a), also commonly referred to as, the strong-arm clause, which grants the trustee the power to avoid any secret security interests, which, in effect relegates the holders of the security interests to the status of unsecured creditors. Furthermore, for a trustee to avoid a preference, the transfer has to be made for or on account of antecedent debt, namely a debt owed prior to the time of the transfer. Therefore, the time of the transfer hinges on the perfection rules which are different according to whether collateral is personal or real property. If avoidance clauses under the DRBA are being considered for a revision, I suggest that researching on relevant rules with respect to concepts of preference and perfection in the U.S. Bankruptcy Code would be helpful.