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否認權의 類型에 관한 硏究
- 否認權의 類型에 관한 硏究
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- 대학원 법학과
- 이화여자대학교 대학원
- The avoidance power is the right to recover the departed property of a debtor to the assets for the general interest of creditors. The Bankruptcy Act and the Corporate Reorganization Act regulate the avoidance power. Although the Article 33 of the Composition Act has the same title of avoidance power, it is not within the scope of this thesis as it has different nature from others. The types of avoidable transactions are stipulated in Article 64 of the Bankruptcy Act and in Art. 78, Para. 1 of the Corporate Reorganization Act. Those two provisions are very similar in contents as well as expression.
In this thesis, the author examines whether it is necessary to maintain different provisions in both Acts, whether it is possible to unify avoidance provisions and whether the provisions cover every type of avoidable actions without any conflicts. She also takes into consideration the fact that current avoidance provisions enumerate specific types of transactions instead of declaring comprehensive and abstract excerpts that are common in civil law legislation.
Following the introduction in Chapter 1, the avoidance power is compared with creditor s right to rescind under the Civil Code in the next Chapter. She also explains the origin and development of the avoidance power in the Bankruptcy Act and the Corporate Reorganization Act.
The avoidance provisions in the Bankruptcy Act and the Corporate Reorganization Act are thoroughly analyzed to find out any difference or any possibility of unification in Chapter 3. She finds no meaningful disparity between them except one resulted from different treatment of secured creditors or different approach of rehabilitation and liquidation in those acts. She proposes an unified provisions for the amendment to the current avoidance provisions.
In order to probe possible defects of prevailing avoidance provisions, those of U.S. Bankruptcy Code are introduced as a checklist in Chapter 4. She examines each U.S. provision and find out whether it is irrelevant to, whether it is properly covered by, or whether it is lacked in the Korean insolvency laws. What should be complemented by legislation is the ground of avoiding some specific transfer including an obligation after bankruptcy procedure, the floating lien of the inventory and accounts receivable of the insider preferences. The interpretation of an antecedent debt also needs legislative clarification.
As a conclusion in the Chapter 5, the researcher summarizes her findings as followings; the possibility and desirability of the unification of separate avoidance provisions, advantage of a typological approach over the general provision approach in regards to avoidance power, and necessity of legislative solution for some deficiencies. Additionally she lists the topics for further study such as the avoidance provisions of former German Bankruptcy Law and a subjective element in fraudulent transactions.
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