채무자회생법상 소유권취득조건부 선체용선선박에 대한 집행의 문제

Abstract

In the case of a bareboat charter agreement with a hire purchase option, while the internal relationship between the contracting parties may vary depending on the terms of the bareboat charter agreement based on the principle of contractual freedom, the bareboat charter agreement regulated under Article 848 of the Commercial Act and the BBCHP (Bareboat Charter with Hire Purchase Option) based on the BARECON form should be regarded as having the substantive nature of a finance lease agreement. On the other hand, the compulsory execution that is suspended or prohibited under Article 58 of the Debtor Rehabilitation and Bankruptcy Act must be ‘against the debtor’s property’. In the case of recognizing the legal nature of a bareboat charter agreement with a hire purchase option as a finance lease agreement, the legal status of the shipowner should be regarded as that of a rehabilitation secured creditor. Therefore, the compulsory execution by the rehabilitation creditors, etc. on the bareboat chartered vessel, which is the property of the debtor, should be prohibited. The court precedents have held that the ownership of the vessel under the bareboat charter agreement with a hire purchase belongs to the shipowner during the charter period, citing the fact that the vessel is registered under a flag of convenience. However, rather than focusing on the formality of the flag of convenience, the substance of the legal relationship should be examined to negate the flag of convenience. Therefore, the application of the Commercial Act and the Debtor Rehabilitation and Bankruptcy Act, rather than the law of the flag of convenience country, should be used to reject the application for a auction of the vessel. Even at the stage of filing for the commencement of bankruptcy proceedings against a shipping company, the individual exercise of rights by creditors based on maritime liens or other privileges under Article 323 of the Debtor Rehabilitation and Bankruptcy Act, which provides for ‘other necessary preservation measures’, can be prohibited. On the other hand, in the case of bankruptcy proceedings, if the legal status of the shipowner under the bareboat charter agreement with a hire purchase is recognized as the owner, the shipowner will be acknowledged as having the legal status of a right of reclamation. On the other hand, if the legal status of the shipowner is viewed as a secured creditor, the shipowner will be a holder of the right of separate and will only be entitled to receive the distribution of the secured amount through the auction procedure of the vessel. However, the right of separate held by the secured creditor in bankruptcy proceedings are substantially similar to the secured creditor having a ‘right of reclamation of value’ within the limit of the secured claim. Therefore, if the value of the vessel and the amount of the secured claim are in balance, there may not be a significant difference in terms of the satisfaction of the claim.