상세검색
최근 검색어 전체 삭제
다국어입력
즐겨찾기0
158030.jpg
KCI우수등재 학술저널

미이행 쌍무계약에 대한 민법과 채무자회생법의 규율

해석론 및 입법론에 대한 비판적 검토를 중심으로

  • 13

When the both of parties have not yet to complete their performance of contract at the time rehabilitation or bankruptcy procedure(collectively “insolvency procedure ) commence for one party of a contract, it would be a problem how to deal with the rights and obligations of the parties and legal relations as to them on insolvency procedure. There are several provisions about executory contract in the Civil Law and the Act on Debtor Rehabilitation and Bankruptcy(“the Insolvency Act ), therefore, executory contract is ruled dualistically by the Civil Law and the Insolvency Act. In this regard, there are many complex and various legal issues, especially an interpretative problem between the Civil Law and the Insolvency Act related to the treatment of executory contract in insolvency procedure. These problems, for example, the contract for work and the contract for the retention of title discussed in this article, are very critical. Additionally, in the case of the contract for the retention of title, conflicts occurred between interpretation of the Civil Law and the Insolvency Act according to practice of the court. It is very important that several provisions of the Civil Law and the Insolvency Act are to be interpreted and applied harmoniously in order to resolve reasonably legal issues related to the executory contract. If the current legal system is maintained, several provisions of the Civil Law and the Insolvency Act about the executory contract are necessary to be revised. Ultimately it is reasonable that the provision about executory contract should be regulated collectively in the Insolvency Act. The issue, which form of legislation should be selected between termination and rejection of contract, is to discuss at a stage when the Civil Law and the Insolvency Act can be amended together. There is an opinion in terms of theory of legislation that it is appropriate to authorize custodian and trustee to choose performance or rejection of the contract, not the right to choose termination of the contract, and to regulate claim of the other party arising from rejection of the contract as rehabilitation claim or bankruptcy claim entirely. However, it is not reasonable that the concept of rejection is introduced only in the Insolvency Act, so far as the current legal system ruled dualistically about executory contract would be continued.

Ⅰ. 서

Ⅱ. 미이행 쌍무계약에 대한 법적 규율

Ⅲ. 개별 계약에 관한 몇 가지 쟁점

Ⅳ. 미이행 쌍무계약에 대한 입법론적 검토

Ⅴ. 결론

<참고문헌>

로딩중