동아탱커 회생절차에서의 법적 쟁점-서울회생법원 2019.5.22.자 2019가합100085결정을 중심으로-

The banks cancelled a loan agreement when Donga was not able to pay the installment for the vessel under BBCHP contract. At the same time, the BBCHP contract was also cancelled. At the risk that its operating vessels would be taken over by the banks, Donga applied for the commencement of rehabilitation proceeding. In order to prevent the withdrawal of the vessels, Donga as a guarantor applied for the commencement of the second rehabilitation proceeding against the SPC in Korea. If the second proceeding became successful, the banks are not able to take over the vessels from the SPC. The banks argued that the application was null and void because Donga breached its earlier agreement with the banks that it would not apply for the rehabilitation proceeding when it established the SPC. The rehabilitation court accepted the banks allegation. Therefore, the BBCHP vessel was not allowed to be engaged in Donga’s business. The author is against the court’s decision because it did not take into consideration that Donga as the beneficial ower had expectation right to obtain the title of the BBCHP vessel. New scheme to protect beneficial owner’s expectation to obtain title of the BBCHP vessel gradually by paying installments is required. The execution against the BBCHP vessel should not be allowed for a certain fixed time by the creditor. The grace period may be allowed to the BBCHP charterer to have chance to engage the BBCHP vessel in case that the breach of contract by the charterer occurs.