한일비교연구: 기업회생법상 부인권

Abstract

This paper aims to study on the Negation Right of Corporate Rehabilitation Procedures in Korea and Japan comparatively. The Negation Right is necessary for the recovery of the declined asset and the company’s earning power as retroactively avoidance the effect of previous certain corporate activities by the Custodian after the onset of rehabilitation procedure. This study reviews ① Negational Act, ② Methods to exercise the Negation Right, ③ Effects of the Negation Right, ④ Limits, and Extinction of the exercise. First, Any custodian may set aside acts falling under any of the following subparagraphs for the debtor's assets after rehabilitation procedures commence: 1. An act performed by the debtor with knowledge that such act damages any rehabilitation creditor or any rehabilitation secured creditor: 2. An act that causes damage to any rehabilitation creditor or any rehabilitation secured creditor, furnishing any security or extinguishing any obligation; 3. The act of furnishing any security or extinguishing any obligation, which is performed by the debtor within 60 days before or after the date on which the debtor suspends his/her payment, etc. and such act does not pertain to the debtor's obligations and the method and the time of such act do not belong to the debtor's obligation: 4. Any gratuitous act or act for valuable consideration that may be deemed identical to the former, which is performed by the debtor before or after 6 months from the date on which the debtor suspends his/her payment. Second, the methods to exercise the Negation Right are same in Korea and Japan. Those are stipulated one of the following three ways in the law of debtor rehabilitation: lawsuit, a claim filed for avoidance or defence. The court may order any custodian to exercise the Negation Right by its inherent jurisdiction or upon receiving an application filed by any rehabilitation creditor, any rehabilitation secured creditor, any shareholder and any equity right holder. The lawsuit and the case of claim for avoidance shall be placed under the exclusive jurisdiction of the rehabilitation court. Third, the exercise effects of the include avoidance suit, avoidance plea, and avoidance claim by the Custodian, and when the court acknowledges it, the corporate asset can be restored to the original condition. When the corporate act is avoided, any payments deviated from the corporate asset due to the disparate act by the other party must be restored from the corporate asset in Korea and Japan. In this case, the restoration claim for the disparate act by the other party bears a characteristic of broad restoration claim for excessive profits in Korea and Japan. Finally, for a safe trade, an act taken place one year prior to the commencement date for corporate rehabilitation cannot be subject to a avoidance because of the early recognition of payment suspension in Korea and Japan. Furthermore, the right to set aside shall not be exercised when 2 years lapse from the date on which rehabilitation procedures commence in Korea. The same shall apply to a case where 10 years lapse from the date on which an act provided for in any subparagraph of Article 100 (1) is performed in Korea. But, right to set aside shall not be exercised when 20 years lapse from the date on which an act is performed in Japan. Moreover, when the table for rehabilitation creditors is set up, the existence of the bond cannot be contended with the right to set aside, and expires as the rehabilitation proceeding completes in Korea and Japan.