도급인의 파산에 관한 민법 제674조 제1항의 회생절차에 대한 유추적용 - 대법원 2017. 6. 29. 선고 2016다221887 판결[공2017하,1563] -

Abstract

The ‘2016da221887’ judgement of the Supreme Court is the first decision to recognize the analogy of the Korean Civil Code(‘KCC’) article 674(1) on the rehabilitation procedure for a contractor, who ordered any work. In this case, it should also be interpreted that the KCC article 674(2) which restricts the claim of damages by the parties, the Debtor Rehabilitation and Bankruptcy Act(‘DRBA’) article 119(2) on the other party's notice right, and the KCC article 547 on the inseparability of the right to terminate. In addition, the court decided that the DRBA article 121(2) does not apply because of its specificity, which limits the retrospective effect upon the termination of the contract for work, and the contractee has the right to claim for a portion of the work it has done as a rehabilitation creditor. In the current legal system, where the KCC and the DRBA specify different requirements and legal effects in relation to the executory contract, I think the judgment intended to balance the application of the law. This is because it is reasonable to treat the executory contract equally in principle in the bankruptcy and rehabilitation procedures. Furthermore, it is likely that other types of contracts other than the contract for work will also be subject to the question of whether to recognize the analogy of the KCC provisions concerning bankruptcy procedure when the rehabilitation procedure is initiated for the party. The current legal situation is undesirable in light of the problems of the KCC provisions concerning bankruptcy procedure and the legislative history. Unlike the DRBA, the legislative purpose of the KCC article 674(1) is to protect the benefit of the contractee by recognizing the right to terminate the contract. However, it can’t be concluded that this provision is necessarily in favor of the contractee and it is not fair that the contractee cannot claim damages even if he or she has suffered losses because the trustee has terminated the contract according to the KCC article 674(2). Regardless of the judgment, I think it needs to establish the unified legal system on the executory contract by the DRBA.