중국 파산절차 중 미도래 부동산임대계약의 처분에 관한 고찰

Abstract

China enacted Enterprise Bankruptcy Law in 2006 and revised its judicial interpretation one after another. However, protecting the lessee in the real estate lease contract is not easy in accordance of the current law. In other words, if the lessor goes bankrupt while the real estate lease contract is in progress, the bankruptcy administrator can terminate the contract in accordance with the provisions of Article 18 of the Corporate Bankruptcy Act. As a result, the rights of the lessee can be infringed. This is because that the lease contract can be maintained by the judgment of the bankruptcy administrator, but the contract is often terminated for the benefit of creditors during bankruptcy procedures. This problem arises when a corporation engages in the real estate leasing business. For example, that the bankruptcy administrator selects a lessee and terminates the contract due to the bankruptcy of a rental business operator that builds rental apartments affects the right to live in a house of the lessee, which causes to unsettle the social and economic order. Therefore, it is necessary to seek a solution by reexamining the cherry-picking of the bankruptcy administrator stipulated in Article 18 of the Corporate Bankruptcy Act from the perspective of theory and practice for real estate in the bankruptcy procedures. Accordingly, this study reviews the provisions for protecting tenant rights due to the conflict of the selective right of performance in both the housing lease contract and bankruptcy procedure in China. The study analyzes the recent case of disposal of unexpired real estate lease contracts during bankruptcy procedures in China and examines the problems and solutions in the application of the law. This will be a very important foundation of the study for securing the soundness and safety of China's continuous development of the real estate rental industry.