미국연방파산법상 편파행위의 부인과 그 예외
Voidable Preferences and Exception to Avoidance under the U.S. Bankruptcy Code
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The trustee is allowed to avoid certain preferential transfers made or suffered by the debtor prior to bankruptcy. The goal of the preference legislation is to maximize estate value and preserve the effectiveness of the distributional scheme in bankruptcy. To prevent the debtor from undermining this goal by transferring its property to a creditor before bankruptcy, the trustee is allowed to avoid these transfers. The system of dealing the preferential transfers before bankruptcy has some important differences between Korean law and U.S. Bankruptcy Code, one of which is that Korean law requires creditor’s awareness of the debtor’s insolvency for the transfers to be able to be avoided, whereas U.S. Bankruptcy Code does not. U.S. Bankruptcy Code in principle allows the trustee to avoid any transfers relating to an antecedent debt made to creditors by the debtor within 90 days before the filing of the bankruptcy petition, and provide some exceptions to avoidance which is designed to encourage extensions of credit to debtor who is under difficult economic situation. In this paper, I point out the unreasonableness in requiring creditor’s awareness of the debtor’s insolvency for the transfers to be avoided under Korean law and propose to do away with it. And, as an exception to avoidance of the transfers, I propose to stipulate the subsequent advances exception with some variations in Korean law. The purpose of this exception is to encourage creditors to deal with the failing business, and by doing so to be able to get the debtors in bad economic situation back to normal situation. For this purpose, I propose expansion of the §547(c)(4) exception to encompass prior as well as subsequent advances.
Abstract
The trustee is allowed to avoid certain preferential transfers made or suffered by the debtor prior to bankruptcy. The goal of the preference legislation is to maximize estate value and preserve the effectiveness of the distributional scheme in bankruptcy. To prevent the debtor from undermining this goal by transferring its property to a creditor before bankruptcy, the trustee is allowed to avoid these transfers. The system of dealing the preferential transfers before bankruptcy has some important differences between Korean law and U.S. Bankruptcy Code, one of which is that Korean law requires creditor’s awareness of the debtor’s insolvency for the transfers to be able to be avoided, whereas U.S. Bankruptcy Code does not. U.S. Bankruptcy Code in principle allows the trustee to avoid any transfers relating to an antecedent debt made to creditors by the debtor within 90 days before the filing of the bankruptcy petition, and provide some exceptions to avoidance which is designed to encourage extensions of credit to debtor who is under difficult economic situation. In this paper, I point out the unreasonableness in requiring creditor’s awareness of the debtor’s insolvency for the transfers to be avoided under Korean law and propose to do away with it. And, as an exception to avoidance of the transfers, I propose to stipulate the subsequent advances exception with some variations in Korean law. The purpose of this exception is to encourage creditors to deal with the failing business, and by doing so to be able to get the debtors in bad economic situation back to normal situation. For this purpose, I propose expansion of the §547(c)(4) exception to encompass prior as well as subsequent advances.
참고문헌 (16)
- 전병서, (2007), 법문사
- 임치용, "資産流動化와 破産", 사법, 1(1), pp.107~134 (2007), 사법발전재단
- Charles Jordan Tabb, "Rethinking preferences", SCLR, 43, pp.981~ (1992)
- Charles Jordan Tabb, "The brave new world of bankruptcy preferences", Am. Bankr. Inst. L. Rev, 13, pp.425~ (2005)
- David J. Desimone, "Section 547(c)(2) of the bankruptcy code: The ordinary course of business exception without the 45 day rule", Akron L. Rev, 20, pp.95~
- Darrel Dunham, "The end of preference liability for unsecured creditors: New sectin 547(c)(2) of the bankruptcy code", Ind. L. J, 60, pp.487~ (1985)
- Gerald B. Kirksey, "A simplified approach to preference calculationssection 547(c)(4) of the Bankruptcy Reform Act of 1978 and the “at risk” rule", Am. Bankr. L. J, 61, pp.255~ (1987)
- Howard N. Corney, "The ordinary course of defense to a preference payment: A trade creditor’s impossible dream", Emory Bankr. Dev. J, 21, pp.183~ (2004)
- Jeffrey T. Ferriell, "Understanding bankruptcy" (2007), LexisNexis
- Lawrence Ponoroff, "Evil intentions and an irresolute endorsement for scientific rationalism: Bankruptcy preferences one more time", Wis. L. Rev, pp.1439~ (1993)
- Lissa Lamkin Broome, "Payments on long-term debt as voidable preferences: The impact of the 1984 bankruptcy amendments", Duke L. J, pp.78~ (1987)
- Michael J. Herbert, "The trustee versus the trade creditor: A critique of section 547(c)(1), (2) & (4) of the bankruptcy code", U. Rich. L. Rev, 17, pp.667~ (1982)
- Michael Kaye, "Preferences under the new bankruptcy code", Am. Bankr. L. J, 54, pp.197~ (1980)
- Michael L. Cook, "Fraudulent transfer liability under the bankruptcy code", Hous. L. Rev, 17, pp.263~ (1979)
- Vern Countryman, "The concept of a voidable preference in bankruptcy", Vand. L. Rev, 38, pp.7113~ (1985)
- W. Stacy Johnson Jr., "The running-account creditor and section 547(c)(4) of the new bankrutpcy code", Wake Forest L. Rev, 16, pp.959~ (1980)