쌍무계약, 신용거래 그리고 채권자평등주의 -대법원 2021. 1. 14. 선고 2018다255143 판결의 비판적 검토

Abstract

This article is a commentary on the Korean Supreme Court case (Supreme Court Decision 2018Da255143 decided January 14, 2021). This case deals with the legal relationship in the case where the seller of a long-term supply contract went into the insolvency procedure. The buyer paid a deposit to the seller for the advance payment of the sale price, and the rehabilitation procedure for the seller began. In the rehabilitation procedure, the seller’s administrator assumed the above supply contract as an executory contract. After some individual transactions based on the assumed long-term supply contract had been made, the supply contract was terminated due to the expiration of the duration of the contract. Korean Supreme Court held that the buyer can claim for the restitution of deposit as a common-benefit claim based on the administrator’s assumption as there is connectivity between the buyer’s claim for restitution of deposit and the seller’s claim for the sale price, so they function as a collateral for each other. However, I oppose the subject case for the following reasons. First, the legal doctrine of the insolvency law about an executory contract is based on the connectivity between both parties’ obligations in the executory contract. However, in this case, there exists no such connectivity between the obligation to return the deposit and the obligation to pay the sale price. There exists another kind of connectivity in a sense that the unpaid sale price can be deducted from the deposit. These two concepts of connectivity must be distinguished. Second, if the insolvency administrator chooses to assume the executory contract, the opponent party’s claim, which has the connectivity with the claim of the insolvent debtor, becomes elevated into the common-benefit claim. Debtor Rehabilitation and Bankruptcy Act upgrades the opponent party’s claim, which was originally the rehabilitation claim, to the common-benefit claim in order to maximize the insolvency estate by realizing the executory contract within the insolvency procedure. However, the buyer’s claim for restitution of deposit in question in the subject case is a claim that arises only after the executory contract is terminated. The administrator chooses to assume the contract not for the realization of the restitution, which materialize after termination of the executory contract, but for the realization of the executory contract as such. Therefore, the buyer’s claim for restitution of deposit cannot be elevated to the common-benefit claim based on the administrator’s choice to assume. Third, a party of the executory contract, who has performed in advance his or her obligation, must bear the risk of the other party’s insolvency because he or she changed󰡈by his or her own decision󰡈the character of the executory contract from simultaneous exchange transaction to transaction based on credit. This principle should also be applied when a party claims for the restitution of his or her advance payment. Therefore, treating the buyer’s claim for restitution of deposit as a rehabilitation claim which is subject to the principle of equality among creditors is reasonable. The subject case is also problematic because it is contrary to the insolvency practices which characterize the lessee’s claim for restitution of deposit as a rehabilitation claim in the event of the lessor’s insolvency.