파산관재인의 법적 지위에 관한 고찰

A Study on the Legal Standing of the Trustee under Bankruptcy Procedure - Focusing on the Legal Standing as the Third Party -

The trustee under bankruptcy procedure(hereinafter referred to as the trustee ), as the main organization of the bankruptcy procedure, executes various activities, of which the focus is on reducing the estate to cash and distributing it to the creditors. The issue of legal standing of the trustee is about the position of the trustee among related parties in the bankruptcy procedure. The argument concerning the legal standing of the trustee started around the end of 1997, when numerous financial institutions went bankrupt and so called IMF era began. It was the main focus of the argument whether the trustee of the bankrupted institution should be protected as the third party under §108(2) of Civil Code or not. The decisions made by the lower courts were contradictory. Even after the Supreme court ruled that the trustee should be the protected as the third party under §108(2) of Civil Code, the argument is still underway. For example, a recent decision made by the lower court after the ruling of the Supreme Court were contradictory to it, which represents the complexity of the issue. Yet I insist that the Supreme Court s conclusion on the matter should be reconsidered in terms of legal stability and predictability. It would be more reasonable to understand the legal standing of the trustee as the general successor who succeeds inclusively to the right to manage and control the bankrupted estate, which belongs to debtor. Other specially-authorized rights of the trustee, which are deemed beyond the legal standing as the general successor to the debtor, are interpreted as being imposed exceptionally by Insolvency Law required for the typical activities of the trustee. Therefore it would not be reasonable to conclude that the trustee possesses the legal standing as the third party based on those rights. Moreover, since it is hard to think that the trustee has the similar legal standing to an attachment creditor, or has an independent interest in the existing legal situations based on the sham, the trustee should not be regarded as the third party who are protected by §108(2) of Civil Code.