도산해지조항의 효력에 관한 일고찰

The Supreme Court expressed the concern through its 2007 judgment that uniformly invalidating the insolvency termination clause could result in violating the principle of freedom of contract. And The Supreme Court ruled that the contract is null and void if it violates mandatory provisions such as the right to choose a custodian in a bilateral contract stipulated by the law. The discussion on the effect of the insolvency termination clause is at the point where the legal principles of the contract law and the legal principles of the insolvency law intersect and collide. In today's economic reality and legal system, it may be a reasonable conclusion to concede the effect of the insolvency cancellation clause based on the principle of contract freedom under the contract law to the value of the insolvency law, which is a collective discipline system that seeks the common interest of the whole society. But Arguments for being normatively justified need to be more rigorous. If the insolvency cancellation clause is a contract that directly infringes on the administrator's right to choose as stipulated in Article 119, Paragraph 1 of the Act, the agreement should be considered invalid because it violates the mandatory provisions. However, it should be checked whether the effect of the insolvency cancellation clause of each contract can be evaluated as valid from the point of view of good faith such as public policy in the insolvency law. Furthermore, it is necessary to prepare legislation in a form that respects the value of insolvency law as soon as possible.