도산절차에서의 쌍방미이행 쌍무계약과 지적재산권 라이선스 계약의 관계

Abstract

As for how to deal with an executory contract in bankruptcy process, it can be largely classified into two systems: the first is the system that DIP or trustee can make a choice between assumption and rejection of executory contracts, and the second is the system that DIP or trustee has an option of exercising the right to assume or cancel executory contracts (as opposed to rejecting them). Korea and Japan adopt the system of exercising the right to cancel executory contracts, whereas the U.S., Germany, and UNCITRAL Legislation Guide on Insolvency Law, etc. adopt the system of exercising the right to reject. From the perspective of comparative law, the system under which DIP or trustee exercises the right to reject a contract, which Korea has adopted, seems to be an outlier. While the Debtor Rehabilitation and Bankruptcy Act in Korea gives DIP or trustee incomparable power to terminate an executory contract to a broad extent except for extremely exceptional cases, Japan revised the bankruptcy law to protect the IP licensee by introducing provisions that allow wider exceptions. Meanwhile, the U.S. has codified the bankruptcy law in the process of developing its own case law based on the U.K.’s case law. During the process, there was wide-ranging discussion with respect to the meaning of the rejection of contract and its effect, as well as lower courts’ rulings that run counter to one another. Despite many special provisions - 11 U.S.C. §365(h), (i), (n), etc. - introduced to address the conflicts, the exclusion of trademark rights from the special clause 11 U.S.C. §365(n) on licensing agreements of intellectual property rights provoked further controversy based on the negative inference, which was put an end to by the U.S. Supreme Court, rendering judgment on the Mission case on May 20, 2019. The U.S. Supreme Court stated, “A rejection breaches a contract but does not rescind it. And that means all the rights that would ordinarily survive a contract breach …… remain in place[,]” upholding the basic principle of the Bankruptcy Code, as well as concluded that the IP (trademark) licensee should be protected, notwithstanding the commencement of the bankruptcy procedure, as an equitable remedy recognized in the non-bankruptcy law must be granted in the bankruptcy process as well. Moreover, premised on the fact that any rights recognized in the non-bankruptcy law, including relief measures under equity law, must be accorded with the same respect, the U.S. legal academia has demonstrated a more flexible view by stating that equitable remedies under contract law can be subject to limitation in the bankruptcy procedure by comparison with the policy objectives of the Bankruptcy Code. Although the bankruptcy system varies country-by-country in terms of its legislative purpose and societal functions, the Korean law cannot afford to ignore the global trend that seeks to harmonize the bankruptcy law with the contract law, which includes the efforts made by many influential advanced countries, such as the U.S., Japan, and Germany, as well as the UNCITRAL’s legislative guide on insolvency law recommending the rejection system instead of the cancellation(termination) system. Moreover, given the economic and social importance of intellectual property rights systems in modern society, it goes without saying that the two systems that have active legislative purposes, beyond simply trying to maintain existing ones, should constantly consider how to strike a harmonious balance between the bankruptcy system and the intellectual property system, especially where the two collide with one another. In this regard, along with the consideration of the Japanese Supreme Court’s ruling that the exercise of the right to cancel an executory contract can also be subject to restriction under the good faith principle, this paper suggests that the Debtor Rehabilitation and Bankruptcy Act in Korea also needs to adopt a statutory interpretation and the enactment of a special provision that enables the bankruptcy court to take a flexible approach in exercising the right to cancel.