파산절차상 미이행쌍무계약으로서의 민간투자사업 실시협약

Concession contract is used to deliver public services. Concession involves a contractual arrangement between a public authority and a concessionaire as Public-Private Partnerships that has shown its added value. The latter provides public services and is remunerated by being permitted to exploit the service. Article 335 (1) of the Bankruptcy Act stipulates that, when a debtor and the other party to a bilateral contract have yet to fulfill the contract at the time they are each declared bankrupt, the bankruptcy trustee shall cancel or terminate the relevant bilateral contract or require the fulfillment of the other party's obligations after fulfilling the debtor's obligations. This paper deals with Concession Contract as Executory Bilateral Contract in the bankruptcy proceedings. Although Concession Contract has some features of public law which do not match the bilateral contract in civil law, the concessionaire shall bear the obligation to "complete the construction and operate the facility," and the competent authority shall bear the obligation to "grant use rights to the facility and cooperate with various business risks" in essence. It is a contract between two parties where each party bears reciprocal obligations upon a single contract. So the Concession Contract should be regarded as a bilateral contract. Both of parties can not be regarded as fulfilling all of their performances of the concession contract at the time the concession contract is early terminated, since both have the obligations to cooperate with each other throughout the project period in light of public-private partnership projects. Therefore, when the concession contract is early terminated, the concession contract at that time shall be regarded as a non-execution contract for both parties. The continuing provision of public services aimed at the concession contract should be undertaken as far as possible in bankruptcy proceedings. It is necessary to consider establishing new regulations that the bankruptcy trustee shall consult with the relevant competent authority, where he/she cancels or terminates a concession contract, The recent revision of Article 335 (3) of the Bankruptcy Act is worthy of reference. When examining the effect of early termination of the concession contract, it should be considered that the concessionaire bears economic risk such as demand risk. Therefore, the amount of money to be returned by the concessionaire at the time of early termination of the concession contract should be the market value of the use right of the facility.