국적취득조건부 선체용선 선박의 회생법하에서의 처리방안

Abstract

The BBCHP vessels comprise of about 70% of all Korean vessels engaged in trade by Korean operating company. However, the Korean owners do not make use of the vessels for the benefit of their business. In particular, we experienced bad situation of Korean owners in case of Hanjin Shipping's rehabilitation and Donga Tanker's rehabilitation. The BBCHP charterer put in very bad situation when it applied commencement of rehabilitation proceeding. Under the BBCHP scheme, the charterer is destined to become the owner of the vessel when it pay the full amount of the vessels price. There are two theories on the legal nature of the BBCHP contract such as a kind of the rehabilitation claim supported by security and executory claims. Under the former, the ownership of the vessel is regarded as in the hand of the charterer. But, under the latter, the owner ship of the vessel is the SPC and the charterer is simply the borrower of the vessel. In the former case, the creditors are not allowed to invoke the auction sale or prejudgment of attachment according to Article 58 of the Debtor's Rehabilitation and Insolvency Act. The Korean court supports the latter position. Therefore, the vessel is totally outside of the rehabilitation proceeding. As a result, the vessel is subject to the auction sale and thus the charterers are not allowed to make use of his vessel, which is detrimental to the charterer as the debtor. The author suggests that the legal right of the ship owners(SPC), finance suppliers and general creditors should be halted for a while and thus their right to cancel the contract is not allowed after rehabilitation proceeding commenced. By doing this, the debtors are have enough time for it to protect itself. They may gathers money and pay the remainder of installment. Otherwise, the creditors and SPC may be allowed to cancel the contract and take back the BBCHP vessels. The revision can be made under the Debtor's Rehabilitation Act. The author also suggests of establishing Financial Fund for BBCHP vessel in which the shipowners, ship financing supplier becomes party of the Fund. The Fund may paid the installment in over due until the commencement of the rehabilitation proceeding, as a result, the debtor as the charterer may have opportunity to make use of his vessel.