회생절차의 종료와 부인권

Abstract

Under the former Corporate Reorganization Law the prevailing precedents held that (1) an effective reorganization proceeding premises the avoiding powers of the receiver and as such the closing of the proceeding would cause t he r eceiver to l ose such p owers, ( 2) even i f any transaction was avoided by the receiver within the reorganization proceeding the reorganized company will lose the right to claim against the counter party restitution or redemption of any property or the value of the property, in the case the proceeding is closed before the property has been transferred to the reorganized company subsequent to the avoidance, (3) in the event the reorganization proceeding is closed while legal actions of avoidance, either in the form of a request, plea or a legal suit, are pending, the receiver shall lose its standing in the case and no one is entitled to succeed the suit. It is possible to conclude that the same shall hold under the current Debtor Rehabilitation and Bankruptcy Law However, the reasoning asserted by the court is disputable on the following grounds. Firstly, the court fails to strictly distinguish between the exercise of avoiding power and its effect. Secondly, the court fails to acknowledge the presence of a right to conduct the legal action of avoidance or a legitimate right of anticipation(gidaegwon) with respect to the advantages of avoidance, which exists from the initiation of the legal action of avoidance to its conclusion. Thirdly, the court does not note the underlying difference between the reasons for closing the proceeding. Fourthly, the opinion that legal actions of avoidance cannot be continued in the event petitions are dismissed or rehabilitation proceeding are closed gives improper inducement to the related parties. On the other hand, when asserted that legal actions of avoidance shall remain in force and effect even after rehabilitation proceeding are closed as long as the actions were instituted during the rehabilitation proceeding,whereas the counter party of the legal action is not subjected to any disadvantage, the creditor of the rehabilitated company or any party positively considering to take over the company can seek to close the rehabilitation proceeding without worrying about the effect of avoidance thus promoting the value of the company and increasing the collective benefit of the society. Therefore, in view of the above legal and functional aspects, as long as any legal action of avoidance was brought to court during rehabilitation proceedings, the company should be allowed to continue, upon the succession of its representatives, litigations even after the rehabilitation proceeding is closed.