기업회생절차상 환취권에 관한 연구

Abstract

Notwithstanding firm applied rehabilitation procedures, the person who has a right to any properties that do not belong to the debtor can reprocess it from such debtor(article 70). This rule seems to conflict with two different issues, the effective rehabilitation of the firm and the right of repossession. However, research on this topic appears insufficient. In this regard, this paper aims to explore the topic as dividing general repossession rights, special repossession rights, alternative repossession rights. At first, in case of conditions and exercise of general repossession right, ① possessive right, which is on the substantial law, tends to be a base of repossession rights. ② standard to judge whether he/she has a proper right to exercise repossession rights must be the very time of claim the right, not the initiation of rehabilitation procedures. ③ the repossession right holder can also exercise the right not only by rehabilitation procedure but also by trial or for a trustee. It means there is no certain strict for the time to exert the right. Furthermore, conditions and exercise of special repossession right, ① Debtor rehabilitation law define the right to property transferred for security as rehabilitation security, thus, the person who holds a right to property transferred for security cannot exert the repossession right. ② In addition to that, the right of provisional registered security also should be interpreted the same as the right to property transferred for security. ③ regarding the sold goods in transit, after seller delivered the goods; but if the buyer did not pay the full price of goods, and rehabilitation procedures for the buyer start during the goods is not received at the destination, the seller can re-acquire the goods(article 7 clause 1). Finally, It also promises alternative repossession rights, which guarantee that the repossession right holder may claim the transfer of the rights to claim the performance of the benefit in return(article 73).