일반환취권과 관리인 · 파산관재인의 제3자적 지위

Abstract

When the bankruptcy court declares someone bankrupt or issues reorganization order, the trustee assumes occupancy or control of the properties in the actual possession of the debtor. Now, when those properties include a property of another person, the owner has the right to recover that property from the bankruptcy estate(namely “whanchi-kwon” in Korean) despite such change in occupancy or control. On the other hand, under general civil law, when the legal owner obtained a title through a sham transaction or a contract voidable on the ground of duress or fraud, its true owner may lose his right to recover it from a bona fide purchaser who has bought it from the legal owner. Also, according to the prevailing view and case law, a creditor who imposes a attachment or a provisional attachment on such property falls under the rubric of “bona fide purchaser”. Now, bankruptcy liquidation is a kind of civil execution and the commencement of the proceeding has the same effect on the debtor’s properties as an attachment or a provisional attachment does. The bankruptcy trustee is independent from the debtor and executes his duty in the benefit of the creditors. In this context, insofar as a creditor who obtains an attachment may be treated as a bona fide purchaser in a sham or voidable contract, a bankruptcy(including reorganization) trustee may be, too. This theory is supported by a majority of scholars and many court decisions. As a result, in some circumstances the true owner of a property cannot recover it from the trustee while he could have gotten it back from the debtor if bankruptcy were not declared. In other words, the bankruptcy trustee is also deemed to have the same status as a bona fide purchaser. In this article, I introduced and examined those legal theories and case law on the status of a bankruptcy trustee as a “bona fide purchaser”, and criticized them on the ground that such rule cannot be applied to civil execution in all circumstances without exception. And then I offered new criteria for granting such status to the bankruptcy trustee, by which a trustee can enjoy the benefit of being a “bona fide purchaser” in much narrower scope, but he need not to be in good-faith as long as he has such status.