企業回生節次上 否認權의 爭點 (The Issues of Avoidance Power in Corporate Rehabilitation Proceedings)

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· 저자명 : 박승두

초록

This study aims to examine the recovery of the declined asset and the company’s earning power as retroactively avoidance the effect of previous certain corporate activities by the manager after the onset of rehabilitation proceeding. This study first reviews the legal characteristics of the avoidance power, meticulously analyzes conditions, methods, effects, limits, and extinction of the exercise, and puts forth a guideline for the implementation of the actual avoidance power.
First, the legal characteristics of the avoidance power reveal various perspectives according to its effect and foundation; it is generally understood as a unique right acknowledged by the law in order to achieve the goal of corporate rehabilitation.
Second, the exercise of the avoidance power requires common conditions for all avoidance acts and specific conditions for individual acts according to the types of acts.
Third, the exerciser of the avoidance power is limited to the manager or the debtor when a manager is not appointed(a representative officer for the corporate). The methods to exercise the denial rights stipulate one of the following three ways in the law of debtor rehabilitation: avoidance suit, veto plea, and avoidance claim.
Fourth, the exercise effects of the avoidance power include avoidance suit, avoidance plea, and avoidance claim by the manager, and when the court acknowledges it, the corporate asset can be restored to the original condition. When the corporate act is avoided, any payments deviated from the corporate asset due to the disparate act by the other party must be restored from the corporate asset. In this case, the restoration claim for the disparate act by the other party bears a characteristic of broad restoration claim for excessive profits.
Fifth, for a safe trade, an act taken place one year prior to the commencement date for corporate rehabilitation cannot be subject to a avoidance because of the early recognition of payment suspension. Furthermore, the claims such penalty and correctional fine as well as tax and the bill rights are excluded from the exercise of the denial rights. The extinctive prescription for the denial rights is enforced two years after the commencement of corporate rehabilitation and after ten years from the commencement of avoidance object act. Moreover, when the table for rehabilitation creditors is set up, the existence of the bond cannot be contended with the denial rights, and expires as the rehabilitation proceeding completes.

영어초록

This study aims to examine the recovery of the declined asset and the company’s earning power as retroactively avoidance the effect of previous certain corporate activities by the manager after the onset of rehabilitation proceeding. This study first reviews the legal characteristics of the avoidance power, meticulously analyzes conditions, methods, effects, limits, and extinction of the exercise, and puts forth a guideline for the implementation of the actual avoidance power.
First, the legal characteristics of the avoidance power reveal various perspectives according to its effect and foundation; it is generally understood as a unique right acknowledged by the law in order to achieve the goal of corporate rehabilitation.
Second, the exercise of the avoidance power requires common conditions for all avoidance acts and specific conditions for individual acts according to the types of acts.
Third, the exerciser of the avoidance power is limited to the manager or the debtor when a manager is not appointed(a representative officer for the corporate). The methods to exercise the denial rights stipulate one of the following three ways in the law of debtor rehabilitation: avoidance suit, veto plea, and avoidance claim.
Fourth, the exercise effects of the avoidance power include avoidance suit, avoidance plea, and avoidance claim by the manager, and when the court acknowledges it, the corporate asset can be restored to the original condition. When the corporate act is avoided, any payments deviated from the corporate asset due to the disparate act by the other party must be restored from the corporate asset. In this case, the restoration claim for the disparate act by the other party bears a characteristic of broad restoration claim for excessive profits.
Fifth, for a safe trade, an act taken place one year prior to the commencement date for corporate rehabilitation cannot be subject to a avoidance because of the early recognition of payment suspension. Furthermore, the claims such penalty and correctional fine as well as tax and the bill rights are excluded from the exercise of the denial rights. The extinctive prescription for the denial rights is enforced two years after the commencement of corporate rehabilitation and after ten years from the commencement of avoidance object act. Moreover, when the table for rehabilitation creditors is set up, the existence of the bond cannot be contended with the denial rights, and expires as the rehabilitation proceeding completes.

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