한국과 미국의 회생절차에서의 미이행계약에 대한 비교

This paper compares and reviews the Debtor Rehabilitation and Bankruptcy Act of Korea (hereinafter ‘Debtor Rehabilitation Act’) and the U.S. Bankruptcy Code (hereinafter ‘Bankruptcy Code’) with respect to the definition of an executory contract and the effect of a trustee’s rejection of an executory contract in rehabilitation proceedings. Under the Debtor Rehabilitation Act, an executory contract is a contract under which parties in a reciprocal relation bear an obligation with respect to one another, and can either be cancelled or terminated by a trustee. The Countryman’s definition of an executory contract is widely used under the Bankruptcy Code in which the term is defined as a contract under which the obligation of both the bankrupt and the other party to the contract are so far unperformed that the failure of either to complete performance wouldconstitute a material breach excusing the performance of the other. However, according to Westbrook, a trustee does not have any special rights to an executory contract under the Bankruptcy Code but rather, chooses to assume or reject an executory contract in order to determine whether to include the contract within the estate thus, material breach or any other special conditions are not required to constitute an executory contract. The Bankruptcy Code provides that a trustee may assume or reject an executory contract upon the court’s approval and that a rejection constitutes a breach of such contract. Also, the U.S. courts have held that a rejection of an executory contract does not cancel or terminate such contract. This paper also examines previous legislative proposals and court cases as to the definition of an executory contract and the effect of a rejection under the Bankruptcy Code. Based on the findings, this paper aims to discuss parts of the Bankruptcy Code which can be introduced in interpreting and implementing the Debtor Rehabilitation Acts with respect to: (i) definition of an executory contract (ii) effect of rejection and (iii) court approval of a trustee’s assumption or rejection. The Bankruptcy Code has several provisions invalidating the ipso facto clause in order to protect a debtor’s assets and to ensure equal treatment of creditors. There is no express provision as to the ipso facto clause under the Debtor Rehabilitation Act; however, the Supreme Court of Korea has held that although the ipso clause’s validity cannot be denied it may be invalidated in order to protect a trustee’s right to choose to assume an executory contract. However, the meaning of the Supreme Court’s ruling is not clear. Furthermore, contradictory decisions are being rendered as to the ipso facto clause. It is urgently necessary to revise the Debtor Rehabilitation Act to invalidate the ipso facto clause based on the principles of protection of debtors’ assets and equal treatment of creditors.