기업회생절차신청을 이유로 한 계약해제권에 관한 연구

Abstract

If one party applies to the court for the commencement of corporate rehabilitation procedures under the Debtor Rehabilitation Act after signing the Executory Contracts, such as the construction subcontract agreement, the other will be in an uncertain position as to whether the other party will properly fulfill its debts. To prevent such risks, it is common in transaction practices to sign an agreement(Ipso Facto Clauses) that if one of the contracting parties applies for the commencement of rehabilitation procedures or decides to commence. The following issues are raised in this regard. First, If such an agreement exists, is it possible to freely cancel the contract under this agreement, and if such an agreement does not exist, is it possible to cancel the contract in the event of a reason for statutory termination prescribed by the Civil Act? Second, what Ipso Facto Clauses and statutory termination have an impact on Debtor Rehabilitation Act, which stipulates that Custodian can choose to perform and cancel bilateral contracts? If Ipso Facto Clauses exists, the major theories and cases adopt the positive position, and the minor theories take negative stand. However, since the rehabilitation procedure start, academies see that the exercise of Ipso Facto Clauses against the Custodian’s right to selection rule. In contrast, the court decides the exercise of the agreement can be limited or nullified. And if the agreement does not exist, there is no opinion regard this issue by academies and the courts. In this regard, I believe that prior to the decision to commence rehabilitation procedures, the right to terminate the agreement can be exercised in respect of the Liberty of Contract under Civil Act, such as the majority theory and precedent. On the other hand, after the decision to commence the rehabilitation procedure, it is believed that both the right to terminate the agreement and the right to terminate the court cannot be exercised according to the Custodian's right to choose.