동산 소유권유보부매매 매도인의 도산절차상 지위 및 금융리스계약에의 시사점

Retention of title(RoT) sale has been widely utilized in commercial transactions as it allows sellers to retain ownership, thereby securing collateral value. However, this atypical nature often conflicts with the objective of insolvency proceedings, which aims to adjust the legal relationships among stakeholders. As a result, the legal status of sellers in RoT sales during the buyer’s insolvency proceedings, as well as the position of lessors in financial leases, has been a subject of conflicting legal and practical interpretations. This paper investigates the aforementioned issues through analyzing the recent Supreme Court Decision 2022Da294084, alongside the earlier foundational Supreme Court Decision 2013Da61190. It examines the points at which the courts sought to modify the rights of RoT sellers, and other implications and significance of the rulings. The key findings are summarized as the following (1)The 2013Da61190 Decision declared that sellers in RoT sales can exercise “security interest (Absonderungsrecht)” in rehabilitation proceedings but cannot assert reclamation rights (Aussonderungsrecht). While this precedent has been criticized based on the “bilateral executory contract theory”, it can be understood as prioritizing the substantive nature of security rights, the intentions of the parties, and the objectives of rehabilitation proceedings. (2)In the recent Supreme Court Decision 2022Da294084, the Court recognized the seller’s status as a “secured creditor” in bankruptcy proceedings as well. The decision is significant in confirming the necessity of maintaining consistency in the adjustment of legal relationships across rehabilitation and bankruptcy proceedings. (3)When extending these interpretations to financial lease companies in insolvency proceedings involving lessees, it is necessary to construct the rights of lease companies as security rights in alignment with the approach taken in recent case law. (4)Reconstructing financial lease relationships as security rights in insolvency proceedings does not eliminate the grounds for invalidating ipso facto clauses. On the contrary, such clauses may be invalidated in light of their underlying rationale. This raises the question of whether financial lease relationships should be regulated differently between rehabilitation and bankruptcy proceedings. However, consistent regulation across both types of proceedings is desirable for legal stability.