쌍방미이행 도급계약의 도산처리에 관한 고찰

Abstract

A particular problem for legal relations in bankruptcy procedures is how to deal with the debtor's existing bilateral executory contracts for work. Articles 119 and 335 of the Debtor Rehabilitation and Bankruptcy Act provide that in the course of bankruptcy procedures, only a custodian or a trustee in bankruptcy can fulfill or terminate bilateral contract unfulfilled by both parties and the other party cannot terminate the contract, but can only demand whether to fulfill or terminate the contract, and can exercise its rights as a creditor with respect to compensation for damages. And the Articles also stipulate the legal effects and special rules applicable to individual contracts, in particular. However, under Article 674 of the Civil Code, a bilateral executory contract for work cannot be terminated when the project owner is declared bankrupt, and the contractor or bankruptcy trustee may terminate the contract, but neither party of the contract may claim damages against the other due to the termination of the contract. As such, when there arises a conflict of laws in bankruptcy procedures, the question comes up as to which law should be applied first and how to reconcile the conflicting interests of the parties. In particular, in the case that the contractor goes bankrupt in the bilateral executory contract for work, the Civil Code does not provide for the bankruptcy and discharge of the contractor. That’s why there are conflicting theories as to whether only the Debtor Rehabilitation and Bankruptcy Act should be applied. Depending on whether the construction work can be replaced and completed by a third party, or the work cannot be replaced, so be completed by the contractor, maintaining the existing contract, it is divided into conflicting theories: the theory of applicability and inapplicability of Article 335. As of now, even if the Debtor Rehabilitation and Bankruptcy Act and the Civil Code maintain a dual system that separately regulates the validity of bilateral contract unfulfilled by both parties etc., in the event that bankruptcy procedures are initiated for either of the contracting parties, the types of issues and theories of interpretation addressed in each legal issue are very diverse and complex, taking into account the legislative intent and characteristics of the Debtor Rehabilitation and Bankruptcy Act. As far as the bilateral executory contract for work is concerned, it is necessary to interpret both the Civil Code and the Debtor Rehabilitation and Bankruptcy Act in a balanced manner based on reasonable grounds, and to delete or amend the conflicting parts of the laws to prevent confusion.