미국연방파산법상 도산실효조항의 효력
The effect of ipso facto clauses in the U.S. Bankruptcy Code
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Recently, there were several lawsuits arising out of Lehman Brother’sbankruptcy in various countries. They were concerned with the enforcementof ipso facto clauses in insolvency proceedings. There was also a case aboutjoint venture agreement which included an ipso facto clause in Korea in2007. Debtor Rehabilitation and Bankruptcy Act did not include any ruleabout this issue and there was no precedent in Korea. So it was a bigquestion whether ipso facto clauses can be enforced in insolvencyproceedings. Ipso Facto means ‘by the fact itself’. And an ipso facto clauseis a contract provision which states that the contract may be terminated ormodified if either party files a insolvency petition. It is a very common wayto evade the risk of a party’s bankruptcy by using ipso facto clauses incommercial transactions. The enforcement of ipso facto clauses is related to two oppositionalvalues. One is the principle goal of insolvency regime, debtor’sreorganization and equality of distribution. And the other is freedom ofcontract. So the problem about enforcement of ipso facto clauses in theinsolvency proceedings means to set the limitation between purpose of theinsolvency law and freedom of contract. To decide whether ipso factoclauses are valid, this thesis tried to find the extent of insolvency law andfreedom of contract by studying the U.S. Bankruptcy Code and cases. There are two representative statutory law about ipso facto clauses in theU.S. Bankruptcy Code. One is section 541(c) which is concerned withcreating the bankruptcy estate. The other is section 365(e)(1) concerning thetrustee’s authority to choose between assuming and rejecting executorycontracts. Section 365(e)(1) of the U.S. Bankruptcy Code states that ipsofacto clauses are unenforceable in bankruptcy, with certain exceptions. Theseexceptions provided in section 365(e)(2) are the contracts cannot performedby the third parties and the financial accommodations.
Abstract
Recently, there were several lawsuits arising out of Lehman Brother’sbankruptcy in various countries. They were concerned with the enforcementof ipso facto clauses in insolvency proceedings. There was also a case aboutjoint venture agreement which included an ipso facto clause in Korea in2007. Debtor Rehabilitation and Bankruptcy Act did not include any ruleabout this issue and there was no precedent in Korea. So it was a bigquestion whether ipso facto clauses can be enforced in insolvencyproceedings. Ipso Facto means ‘by the fact itself’. And an ipso facto clauseis a contract provision which states that the contract may be terminated ormodified if either party files a insolvency petition. It is a very common wayto evade the risk of a party’s bankruptcy by using ipso facto clauses incommercial transactions. The enforcement of ipso facto clauses is related to two oppositionalvalues. One is the principle goal of insolvency regime, debtor’sreorganization and equality of distribution. And the other is freedom ofcontract. So the problem about enforcement of ipso facto clauses in theinsolvency proceedings means to set the limitation between purpose of theinsolvency law and freedom of contract. To decide whether ipso factoclauses are valid, this thesis tried to find the extent of insolvency law andfreedom of contract by studying the U.S. Bankruptcy Code and cases. There are two representative statutory law about ipso facto clauses in theU.S. Bankruptcy Code. One is section 541(c) which is concerned withcreating the bankruptcy estate. The other is section 365(e)(1) concerning thetrustee’s authority to choose between assuming and rejecting executorycontracts. Section 365(e)(1) of the U.S. Bankruptcy Code states that ipsofacto clauses are unenforceable in bankruptcy, with certain exceptions. Theseexceptions provided in section 365(e)(2) are the contracts cannot performedby the third parties and the financial accommodations.
참고문헌 (46)
- 서울중앙지방법원 파산부 실무연구회, "법인파산실무" (2011), 박영사
- 서울중앙지방법원 파산부 실무연구회, "회생사건실무(상)" (2011), 박영사
- 김성용, "도산조항의 효력", 사법, 1(4), pp.215~245 (2008), 사법발전재단
- 김성용, "합성 CDO 거래에서의 Flip Clause의 도산절차상 효력", 성균관법학, 23(3), pp.1037~1059 (2011), 법학연구소
- 박병대, "파산법의 제문제(상)" (1999), 법원도서관
- 신동찬, "합작투자계약의 법률관계", 判例硏究 (2011), 서울지방변호사회
- 오민석, "건설회사의 회생절차에 관한 소고", 도산관계소송 (2009), 한국사법행정학회
- 오수근, "판례실무연구 Ⅸ" (2010), 박영사
- 임지웅, "도산해지조항의 효력 및 범위 Flip-In 조항의 효력에 관한 영국과 미국의 판례분석을 중심으로", 도산법연구, (2) (2010), 사단법인 도산법연구회
- 한민, "미이행쌍무계약에 관한 우리 도산법제의 개선방향", 선진상사법률연구, (53), pp.57~94 (2011), 법무부
- Baird, Douglas G., "Cases, Problems, and Materials on Bankruptcy" (2001), Foundation press
- Baird, Douglas G., "Cases, Problems and Materials on Bankruptcy Law" (1995), Foundation Press
- "Collier on Bankruptcy ¶365.07", ~ (2000)
- , 1975
- , 1992
- , 1995
- "Collier Bankruptcy Practice Guide ¶68.12", ~ (2010)
- Epstein, David G., "Bankruptcy and Related Law" (2013)
- Epstein, David G., "Principles of Bankruptcy Law" (2007), THOMSON WEST
- Gross, Karen, "Failure and Forgiveness: Rebalancing the Bankruptcy System" (1997), Yale University Press
- "H.R. Rep. No. 95-595, 95th Cong", 1st Sess. 347, ~ (1977)
- "Norton Bankruptcy Law and Practice 2d §39:19", ~ (1994)
- "Norton Bankruptcy Law and Practice", 3d Database updated April 2013 §46:22(2 Norton Bankr. L. & Prac. 3d §46:22), ~
- , ~, pp.Senate Report no. 95-989
- Tabb, Charles Jordan, "The Law of Bankruptcy" (2009), Foundation Press
- The National Bankruptcy Review Commission, "Report of the National Bankruptcy Review Commission", Ⅰ(464) (1997)
- "Williston, Samuel, Contracts § 14", ~ (1957)
- Adams, Edward S., "A Privatization Solution to the Legitimacy of Prepetition Waivers of the Automatic Stay", Ariz. L.Rev, (1) (1996)
- Andrew, Michael T., "Contracts in Bankruptcy (Executory Contracts Revisited:A Reply to Professor Westbrook", U. Colo. L. Rev, 62(1) (1991)
- Andrew, Michael T., "Executory Contracts In Bankruptcy: Understanding Rejection", U. Colo. L. Rev, 59(845) (1988)
- Baird, Douglas G., "A World Without Bankruptcy", Law & Contemp. Probs, 50(173) (1987)
- Baird, Douglas G., "Corporate Reorganizations and the Treatment of Diverse Ownership Interests: A Comment on Adequate Protection of Secured Creditors in Bankruptcy", U. Chi. L. Rev, 51(97) (1984)
- Bordewieck, Douglas W., "The Postpetition, Pre-Rejection, Pre-Assumption Status of an Executory Contract", Am. Bankr. L.J, 59(197) (1985)
- Bradley, Michael, "The Untenable Case for Chapter 11", Yale L.J, 101(1043) (1992)
- Countryman, Vern, "Executory (pt. Ⅰ)", Minn. L. Rev, 57(439) (1973)
- Hage, Paul R., "What your LLC Operating Agreement Can Do For You", American Bankruptcy Institute Journal, 24 (2012)
- Hahn, David, "The Internal Logic of Assumption of Executory Contracts", U. Pa. J. Bus. L, 13(723) (2011)
- Jansen, Julia S., "Executory Contracts with Financial Accommodations: A Plea for Bifurcation Under 11 U.S.C. §365", Washington University Law Review, 71(3) (1993)
- Karwowski, Henry M., "Can The Invalidation of Ipso Facto Clauses Apply to Prepetition Termination?", American Bankruptcy Institution Journal, (54) (2010)
- Nimmer, Raymond T., "Executory Contracts in Bankruptcy: Protecting the Fundamental Terms of the Bargain", U. Colo. L. Rev, 54(507) (1983)
- Park, Cheol, "Monitoring and Structure of Debt Contracts", J. Fin, 55(2157) (2000)
- Shanker, Morris G., "Bankruptcy Asset Theory and its Application to Executory Contracts", Ann. Surv. Bankr. L, 1992(97) (1992)
- Staats, Aaron C. Von, "Ipso Facto Clauses and Chapter 7 Bankruptcies :Superfluous Contract Provisions, Enforceable Prenuptials, or Contrary to the Fresh Start?", Boston Colledge Law Review, 32(703) (1991)
- Tracht, Marshall E., "Contractual Bankruptcy Waivers: Reconciling Theory, Practice, and Law", CORNELL L. REV, 82(301) (1997)
- Triantis, George G., "The Effects of Insolvency and Bankruptcy on Contract Performance and Adjustment", University of Toronto Law Journal, 43(679) (1993)
- Westbrook, Jay Lawrence, "A Functional Analysis of Executory Contracts", Minn. L. Rev, 74(227) (1989)