선박소유자의 파산 시의 선체용선계약을 둘러싼 법적 쟁점

There are various types and contents of the Bareboat Charter Parties(hereunder, BBC), such as having the nature of a ship lease contract under the Civil Code, those that are similar to the ship lease contracts stipulated by BARECON, and those prescribed in Article 848 (2) of the Commercial Code. In particular, since the legal nature of the ship lease contract under the Civil Code and the Bareboat Charter with HIre Purchase Option(hereunder, BBCHP) are different, the legal effect in the case of bankruptcy of the shipowner is also different. In the case of a ship lease contract or a BBC stipulated in Article 847 (1) of the Commercial Code, the bankruptcy administrator may choose to perform the BBC or terminate the contract according to Article 335 of the Debtor Rehabilitation and Bankruptcy Act(hereunder, DRBA). Furthermore, the bankruptcy administrator may exercise the right to terminate the contract due to default under the Civil Code, apart from the right to terminate the contract under the DRBA. Meanwhile, Article 340 of the DRBA stipulates that if the lessor is declared bankrupt, the advance of rent fees or disposition of rent credit cannot oppose the bankruptcy creditors except for the current and subsequent periods at the time of the declaration of bankruptcy. However, the above provision has a problem in that the charterers who have paid the hires in advance must additionally bear the remaining hires excluding the current and subsequent hires when the bankruptcy proceedings are initiated. When the legal nature of a BBCHP is identified as a finance lease, the trustee in bankruptcy cannot exercise the right to terminate the contract pursuant to Article 335 of the DRBA, and the shipowner’s right to the hires belong to the bankruptcy foundation according to the Article 382 of the DRBA. Furthermore, if the shipowner goes bankrupt under the BBCHP, the shipowner's holding of the ownership the vessel is only for the purpose of securing his/her financial bonds, and the actual owner of the chartered ship should be regarded as the charterer. Therefore, the charterer will be able to exercise the right of re-acquisition, regardless of whether the chartered vessel is registered or not. Lastly, the so-called “insolvency termination clause” is invalid in principle since it infringes on the authority to terminate or fulfill the non-performed bilateral contract granted to the trustee in bankruptcy under the DRBA. The maritime lien stipulated in the Commercial Code is not a security right stipulated in Article 411 of the DRBA. Accordingly, in the case of a ship lease contract a BBC stipulated in Article 847 (1) of the Commercial Code, the maritime lien that the charterer's creditor has over the shipowner pursuant to Article 850 (2) of the Commercial Code cannot be recognized as the right to foreclose outside bankruptcy prescribed in Article 411 of the e DRBA.