금융리스와 도산절차 - 재론(再論) -

In this article, I analyzed the legal relationship of financial lease in lessee’s insolvency proceeding. The main conclusions are as follows. First, the main purpose of lessor’s withholding the ownership of leased objects in financial lease is to secure the restitution of leased objects. To secure the satisfaction of lease-rates is a secondary and subsidiary purpose. Therefore, financial lease is similar to retention of title as a security right for guaranteeing the recovery of one’s own movables, and is distinguished from transfer for security (Sicherungsübereignung) as a security right for debt repayment. Second, as financial lease in non-insolvency situation is a kind of security right for guaranteeing the recovery of one’s own movables, not for guaranteeing unpaid lease-rates, a lessor should not be deemed as a secured creditor but the owner of leased objects in lessee’s insolvency proceeding. The opinion that considers a lessor as a secured creditor in lessee’s insolvency proceeding is contrary to the intention of lease-contract parties, and violates the “numerus clausus” principle in property law. The lessor’s true ownership after the termination of financial lease in non-insolvency situation cannot be changed into security right in the lessee’s insolvency proceeding, unless otherwise provided by law. If we take the opinion that the lessor as a owner of the leased objects has security right to the lessee’s use right over the leased object not the object itself, the problem of violating the “numerus clausus” principle can be avoided. However, such opinion is also contrary to the intention of contract parties. Third, financial lease is executory contract in lessee’s insolvency proceeding, unless there is a compulsory law that deems financial lease as a security right in non-insolvency situation. Financial lease is executory contract irrespective of the economic function and substance of financial lease as a loan for the purchase money about the leased objects. Fourth, my opinion that regards financial lease as executory contract is not always unfavorable to the insolvent lessee. This is because the lessor’s termination right can be denied on the basis of the “bona fide” principle and “abuse of right” doctrine. When continuing financial lease is also more profitable to the lessor than early termination and restitution of leased objects, lessor’s termination rights based both on the ipso facto clause and on the lessee’s non-payment of lease-rates shall be denied. Even if early termination and restitution is favorable to the lessor, lessor’s termination rights based on the ipso facto clause may also be denied, when continuing lease is essential to the lessee’s rehabilitation and the lessor’s loss incurred due to the continuation of the lease is small. When the lessee delayed the payment of lease-rates, the acceleration clause takes effect. However, the effect of acceleration based on the ipso facto clause can also be denied just as the lessor’s termination right based on the ipso facto clause is denied.