회생절차에서 금융리스업자의 법적지위 - 대법원 2022. 10. 14. 선고 2018다210690 판결에 대한 평석을 겸하여 -

Abstract

This paper discusses the status of a financial leasing company in rehabilitation proceedings. We compared the security interest theory and the theory of executory bilateral contract from a legal and policy perspective. Furthermore, the problematic situation in current practice was examined and alternative solutions were proposed. Based on the results of the discussion, a recent Supreme Court ruling was evaluated. The main content of the judgment is to restrict the exercise of rights of a financial leasing company in the rehabilitation procedure based on the principle of good faith. The contents of the paper are summarized as follows. First, in terms of legal logic, the theory of executory bilateral contract is consistent with the intentions of the parties and is based on legal texts. In spite of the specificity of the financial lease contract, a financial leasing company cannot be treated as a rehabilitation secured creditor. The obligation to pay a lease fee for a financial lease and the obligation to accept the use of the lease are recognized as bilateral in an executory bilateral contract. Second, the current practice takes a similar position to the security right theory, allows the exercise of the right to terminate acquired before the start of bankruptcy proceedings, and interprets the Ipso Facto Clause broadly as valid, which contradicts the main purpose of the security right theory and causes a financial leasing company to exercise the right to terminate early. In the current practice, which takes a similar position to the security right theory, Ipso Facto Clause in the financial lease contract should be actively interpreted as invalid as contrary to the liability law public order. Third, in terms of policy, the theory of executory bilateral contract is reasonable. If the security right theory is chosen and Ipso Facto clause is actively interpreted as invalid, some of the current practical problems may be solved, but the interests of the a financial leasing company are not considered in a balanced way. If the rehabilitation proceeding is operated according to the theory of executory bilateral contract, the interests of the a financial leasing company can be considered in a balanced manner, which has a clear policy advantage. The unfair exercise of rights by the a financial leasing company may be limited based on the active invalid interpretation of Ipso Facto Clause and the good faith principle. Fourth, the Supreme Court ruling recently sentenced in relation to the exercise of the a financial leasing company's rights in the rehabilitation proceeding is valid in its conclusion, and it comprehensively suggests the logical difficulties of the security right theory, the current practice problem, and the policy advantages of the theory of executory bilateral contract.