쌍방미이행 쌍무계약에서 도산해지조항에 관한 연구 -최근 입법의 비교법적 연구를 중심으로-

If an insolvency termination clause is provided in case the other party to the contract commences insolvency proceedings, an issue arises as to whether it can be exercised in the insolvency process. However, the Debtor Rehabilitation and Bankruptcy Act (hereinafter referred to as the ‘DRBA’) does not explicitly provide for this. And because there are no established precedents or theories, it is difficult to predict the results. Recently, major countries have completed legislation on the effect of bankruptcy termination provisions in bankruptcy procedures, and this article reviews this and proposes a plan to establish related provisions in the DRBA. First of all, the United States already has provisions in the U.S. Federal Bankruptcy Act that limit the effect of bankruptcy termination provisions throughout the bankruptcy process and recognize certain exceptions. The United Kingdom, which previously recognized the effect of insolvency termination clauses in principle, recently enacted regulations limiting the effect of insolvency termination clauses in essential goods or service contracts through a law amendment in 2020. Germany recently legislated regulations that, in principle, limit the effect of insolvency termination provisions, reflecting the EU directive. France has sequentially stipulated throughout the statutory insolvency procedure provisions that limit the effect of insolvency termination clauses as a prerequisite to the administrator’s exercise of the performance option for contracts that are already ongoing. Japan, like us, does not have any related written regulations. Therefore, in terms of interpretation, there are conflicting theories as to whether to limit its effect in bankruptcy procedures and whether to limit its effect in liquidation-type bankruptcy procedures. Accordingly, in consideration of the purpose of the bankruptcy system, this article proposes that the DRBA stipulate that the effect of the bankruptcy termination clause in an executory contract during the period of bankruptcy proceedings, but allow certain exceptions. Also, by referring to other legislative examples such as the UK and France, the introduction of a mechanism to protect creditors, who are counterparties to transactions, could be considered. It is proposed that the regulations limiting the effect of these bankruptcy termination provisions be the same in bankruptcy procedures as well as rehabilitation procedures.