채무자 회생 및 파산에 관한 법률의 적격금융거래에 대한 특례조항의 비판적 검토

The Debtor Rehabilitation and Bankruptcy Law (the “DRBL”) contains a special provision for certain qualified financial transactions including derivatives and repurchase transactions in the Article 120, Paragraph (3) of the DRBL (“Special Provision of the DRBL”). In the United States, some strong criticism has arisen against the safe harbors contained in the U.S. Bankruptcy Code (“Safe Harbors”). It is argued that experiences from Lehman Brothers and AIG during the global financial crisis revealed problems that large financial institutions would be vulnerable to run by creditors of derivatives and repurchase transactions relying on the Safe Harbors and it may increase systemic risk to markets. It becomes doubtful whether the Safe Harbors can perform the function of reducing the systemic risk, as ascertained thus far to be the major ground for the safe harbors. Same concerns can arise about the Special Provision of the DRBL. Even if we may accept the necessity of the Special Provision of the DRBL since it can enhance the liquidity and improve competitiveness of our financial market, the Special Provision of the DRBL should be interpreted strictly in order to minimize the conflict with the principle of creditors’ equality. In this regard, there will be no problem in that the Special Provision of the DRBL makes the close-out netting, by which a net claim will be made pursuant to a master agreement of the qualified financial transactions, to be enforceable. However, special treatments to the related collateral agreements should be strictly applied. The principle of prohibition on separate enforcement should be maintained and security right such as pledge should be subject to restrictions on rehabilitation security right in the DRBL. Amending the Special Provision of the DRBL to apply to the title transfer collateral arrangements only excluding the security interest can help to eliminate the uncertainty. If a counterparty does not terminate the agreement when payment suspension, application of rehabilitation procedures or bankruptcy is made against a debtor in order to wait for favorable time to terminate for its own benefit, and obtain collateral from the debtor, such provision of collateral should be subject to the avoidance power. In addition, the temporary stay on termination right of counterparty should be adopted in resolution regime of financial institutions.