倒産節次上 未履行雙務契約에 관한 硏究

This paper deals with an executory contract in Insolvency Procedure, especially the treatment of executory contract in bankruptcy procedure under the Debtor Rehabilitation and Bankruptcy Act. If both the bankrupt and the other party have not completed the performance of a bilateral agreement by the time when the bankruptcy is declared, the trustee in bankruptcy may rescind the agreement, or claim for the performance of the other party after performing the obligation of the bankrupt. If an agreement is rescinded, the other party may exercise as a bankruptcy creditor the right to compensation for damages. If any considerations received by the bankrupt exist in the bankrupt estate, the other party may claim the return thereof and, if not, the other party may exercise as a bankruptcy creditor, his/her right to the value thereof. In the case referred to above, the other party may set a certain period and demand the trustee in bankruptcy to give a definite answer as to his intention of rescission or performance of the agreement within the set period. If the trustee in bankruptcy fails to give a definite answer within such period, the agreement shall be considered to have been rescinded. This paper focuses on aims and legal bases of the treatment of executory contract in bankruptcy procedure. The treatment of executory contract in bankruptcy procedure guarantee the balanced rights and interests of not only contract parties but also related creditors.