회생절차에서 소유권유보와 매도인의 지위

Abstract

The Supreme Court Judgmentﾠ2013Da61190 rendered on April 10, 2014 was the firstjudgment that clearly adjudicated the legal status of the seller in the reorganization proceedingsstating that in case of property-forbearance bearing sale of the movables, the property-forbearancehad the nature of substantive claim to collateral, so it should be considered as the claim toreorganized collateral in the reorganization proceedings against the buyer. In order for a real rightgranted by way of security to be considered as the claim to reorganized collateral in thereorganization proceedings, it should be the claim acquired due to causes prior to thecommencement of the reorganization proceedings and also there should exist the claim to collateralover the properties of debtor at the time of commencement of the reorganization proceedings. Bythe way, the property-forbearance cannot be acknowledged as the claim to reorganized collateral asprovided in Article 141 in that the ownership of forborne object belongs to the seller, not to the buyer unless the balance of price is paid in full, and if the property-forbearance is considered asthe claim to reorganized collateral, it will result in a discordance with the theoretical system of realrights. And if the property-forbearance is considered as the claim to reorganized collateral, theproperty-forbearance should be treated as the right of exclusion in the bankruptcy proceedings inthe event that the bankruptcy proceedings commences after the decision of approval forreorganization plan, and in this case if the execution is made in a way of acquisition settlement,there occurs a problem of contradiction that the claim to collateral is executed over the propertiesof claimant’s own. If the execution is made in a way of disposition settlement or through theexercise of auction right in any discretionary way, the custodian should return the forborne objectto the seller, which would result in the same consequence as in the case that the right ofrepossession is acknowledged. And, according to a judicial precedent that admitted the validity ofIpso Facto Clause for bankruptcy, if there is any clause in an agreement of property-forbearancespecifying that a contract shall be naturally cancelled when there is an application forreorganization or bankruptcy commencement, the seller is entitled to repossess the forborne object. In conclusion, the judgment 2013Da61190 that denied the right of repossession cannot be regardedas appropriate in that in case of property-forbearance, an equality that a real right granted by wayof security in the reorganization proceedings is the claim to reorganized collateral cannot beestablished.