파산절차상 부인권의 일반적 요건에 관한 소고

Abstract

The purpose of the system for avoidance power in bankruptcy proceedings is to promote the bankruptcy foundation by avoiding the debtor's acts to protect creditors. The interpretation and application of common requirements(the debtor's acts, the harmfulness of the act, and the unfairness of the act) for each type of avoidance in bankruptcy proceedings, should be in accordance with the purpose of this avoidance power system. Among the general requirements for the avoidance power, in principle, the object of avoidance is limited to the debtor's acts, and may be subject to avoidance exceptionally if there are special circumstances in which the acts of the creditor or a third party may be identified with the debtor's acts. Each subparagraph of Article 391 of the Debtor Rehabilitation Act stipulates the subject of the acts as the debtor, but in light of the purpose of the avoidance power, it is necessary to expand the scope of subject to the creditor or third party's acts which may be identified with the debtor's in special circumstances. The harmfulness of the act deteriorates the satisfaction that each bankruptcy creditor should receive, and the acts that harm bankruptcy creditors include preferences and fraudulent transfer. The harmfulness is numerical concept and its existence must be objectively determined based on the time of action. In addition, the unfairness of the act is not an independent requirement separate from other general establishment requirements, but the reasonability of the act, that is, the defect of unfairness, should be understood as a passive establishment requirement for the avoidance power. Meanwhile, bankruptcy trustee’s exercise of the avoidance power is not only a restriction on the debtor's freedom of management and disposal of his own property, but also a threat to the interests of a third party who traded with the debtor, so harmony between bankruptcy creditors, debtors and third parties is necessary. Therefore, the exercise of the avoidance power should be recognized only when the purpose of the bankruptcy foundation's fulfillment and debtor equality protection can be justified, even at the expense of the debtor's freedom of property management and disposition and third party's transaction safety.