회생절차와 사고신고담보금 관련 법률관계

• 영문명: Accident Notice Deposit and Related Legal Issues in the Reorganization Proceeding of a Note-Drawer
• 발행기관: 한국민사법학회
• 저자명: 성민섭(SEONG Min Sup)
• 간행물 정보: 『민사법학』제47호, 533~578쪽, 전체 46쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2009.12.31

영문 초록

This article is to review types of disputes and related legal issues incurred or to be incurred from or in connection with the accident notice deposit of the note-drawer in case where the reorganization proceeding of the note-drawer has commenced; and to research into the precedents of Supreme Court and the past and current theories regarding the above in the critical point of view. As to the disposal of the accident notice deposit in reorganization proceeding, the main issues are (i) whether the note-holder may demand the paying bank to reimburse the accident notice deposit pursuant to the contract for disposal of accident deposit (relationship of the reversion of accident notice deposit) and (ii) whether the right of reimbursement of the note holder of accident notice deposit, which was forfeited due to failure to making report of claims (right) in the reorganization proceeding, or of which the terms and conditions were revised due to modification of reorganization plan, is forfeited or whether the content of the right is changed (relationship between the right of note proceeds and the right of reimbursement of accident notice deposit); the above issues are directly related to how to decide the essential nature or legal characteristics of the accident notice deposit and contract for disposal of accident notice deposit. The precedents of Supreme Court and majority opinions see the above as the contract for the third party, while minority opinions see it as the contract for deposit for reimbursement. However, the former tends toward the manner of formation of right and thus it is not proper or sufficient to explain the substantial contents, while the latter is the view overlooking the essential nature of the system of accident notice deposit, which cannot be explained at all by the legal theory of deposit of reimbursement, such as non-existence of intent of reimbursement and the like. Accordingly, the author views it proper that the legal characteristics of the contract for disposal of accident notice deposit is the contract for the third party in terms of form (creation and reversion of rights) and the untitled contract (nichtbenannter Vertrag) similar to escrow in terms of substantial contents. According to the author’s above view, it is deemed to be possible that (i) a note-holder may demand the paying bank to reimburse the accident notice deposit even though the reorganization proceeding as to the note-drawer has commenced, and (ii) a note-holder may request the reimbursement of the accident notice deposit in full as set forth in the contract for disposal of accident notice deposit regardless of whether the right has been forfeited in the reorganization proceeding or the content of note claim has been revised pursuant to the reorganization plan. Accordingly, it is deemed to be inconsistent while the Supreme Court made a distinction between the case where the right was forfeited in the reorganization proceeding and the case where the content of note claim was revised pursuant to the reorganization plan, Supreme Court held that the right for reimbursement of accident notice deposit was also forfeited only for the former case. Therefore, it is deemed to be reasonable that the note-holder, whose right was forfeited in the reorganization proceeding, may also file a legal action against the trustee of the note-drawer seeking for a consent to reimburse the accident notice deposit or confirmation of the right of reimbursement of accident notice deposit to revert to the note-holder , and then he/she may be entitled to exercise the right of the accident notice deposit in accordance with the judgment of such legal action.

목차

Ⅰ. 글 머리에

Ⅱ. 분쟁의 유형 및 법적 쟁점

Ⅲ. 사고신고담보금 예치계약의 법적 성질

Ⅳ. 회생절차개시와 사고신고담보금의 귀속관계

Ⅴ. 소지인의 어음금채권과 사고신고담보금에 대한 권리의 견련성

Ⅵ. 맺는 말

참고문헌

키워드

회생절차 사고신고담보금 별단예금 사고신고담보금 처리를 위한 약정(사고신고담보금 예치계약) 제3자를 위한 계약 에스크로 실권 면책 reorganization proceeding accident notice deposit temporary deposits ontract for disposal of accident notice deposit contract for third party escrow forfeiture of rights immunity(discharge)