파산을 이유로 한 해제권 규정 연구

The Debtor Rehabilitation and Bankruptcy Act (hereinafter "DRBA") grants bankruptcy trustees the authority to choose between performing or terminating bilateral executory contracts during bankruptcy proceedings. However, the Korean Civil Act diverges from this principle by granting the counterparty a right of termination in specific cases, such as leases and construction contracts, upon the debtor’s bankruptcy. In these cases, the Civil Act also restricts the counterparty’s right to claim damages, both of which conflict with the framework of the DRBA and create legal uncertainty. This paper examines the legislative history underlying this inconsistency, focusing particularly on the influence of Japanese law on Korean legislation. A comparative analysis is conducted of the DRBA's provisions on trustee authority and the Civil Act’s rules on contract termination upon a lessee's bankruptcy or a bankruptcy of person who ordered work. Based on this legislative-historical analysis, the paper critically evaluates current legal provisions, prevailing academic opinions, and relevant case law. As a legislative reform proposal, it suggests the deletion of the relevant Civil Act provisions—Articles 637 and 674—on the grounds that they undermine the trustee’s statutory discretion under Article 335 of the DRBA and disrupt the consistency and purpose of bankruptcy proceedings.