파산관재인과 관리인은 제3자인가?

The Supreme Court's precedents and prevailing opinions hold that bankruptcy trustees in the bankruptcy procedure and administrators in the rehabilitation procedure appointed under the Bankruptcy Act are considered third parties distinct from the debtor in substantive law. The reason is, since the bankruptcy trustee performs their duties with the care of a prudent manager for the common interest of all bankruptcy creditors, the bankruptcy trustee also acquires the status of a third party who, pursuant to the bankruptcy declaration, becomes independent from the bankrupt debtor and has an interest in their property. Similarly, the administrator also performs their duties with the care of a prudent manager for the common interest of all creditors, etc., independently from the debtor, so the administrator is considered a third party. Furthermore, legal doctrine also holds that the bankruptcy trustee is in the same position as a garnishment creditor. These precedents and prevailing opinions have been influenced by Japanese law. However, in the United States and Germany, it is different. According to U.S. case law, the bankruptcy trustee stands in the shoes of the debtor and can only assert the causes of action held by the debtor. Conversely, the trustee must accept any defenses that the debtor could have asserted if the debtor had filed a claim. Therefore, if the debtor cannot claim the return of an illegal payment, the trustee must also accept the defense of in pari delicto. The same applies to Germany. A German bankruptcy trustee does not have greater rights than the debtor, and the bankruptcy trustee is bound by the legal status at the time of the commencement of insolvency proceedings. Any defenses and objections (Einreden und Einwendungen) that could have been asserted against the debtor's claims may also be asserted against the bankruptcy trustee. In the past, German case law held that while the debtor could not claim the return of payments made for an unlawful cause, the trustee could. However, this precedent was overruled, and now the bankruptcy trustee cannot claim the return of payments made for an unlawful cause either. In my opinion, bankruptcy trustees and administrators should not be regarded as third parties distinct from debtors in substantive law. First, unlike attachment creditors, bankruptcy trustees did not enter into new relationships based on the belief that sham transaction were valid. Second, the fact that the bankruptcy trustee or administrator is obligated to exercise the duty of care of a prudent manager for the common interest of all creditors does not logically imply that the bankruptcy trustee or administrator is a third party distinct from the debtor and can assert rights that are greater or different from those the debtor can assert. Third, changes in legal relationships resulting from bankruptcy proceedings must be limited to the minimum necessary to achieve the purpose of the bankruptcy proceedings. In the United States, this is referred to as the Butner Principle. However, if the bankruptcy trustee or administrator is regarded as a third party, the initiation of bankruptcy proceedings or the appointment of the bankruptcy trustee or administrator itself becomes a condition that brings about a change in legal relationships. This does not align with the principle that changes in legal relationships resulting from bankruptcy should be minimized.