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Subject

Penalty for a foundation claims nonperformance oftrustee in bankruptcy
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파산관재인이 재단채권의 지급을 거절한 경우 이행지체 책임이 성립하는지 여부 및 이행지체 책임이 성립하는 경우 지연손해금 채권의 법적 성질 - 대법원 2014. 11. 20. 선고, 2013다64908 전원합의체 판결에 대한 평석을 중심으로 -

논문 기본 정보

Type
Academic journal
Author
Jung Hyun Soo (울산지방법원)
Journal
법조협회 법조 법조 제64권 제7호 KCI Excellent Accredited Journal
Published
2015.1
Pages
188 - 255 (68page)

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Penalty for a foundation claims nonperformance oftrustee in bankruptcy
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This article is review on the ruling of the Supreme Court of Korea(2014. 11. 20. 2013DA64908). The main legal issue of the case is that in situation of trustee in bankruptcy doesn`t perform foundation claims, penalty for a nonperformance is also foundation claims or junior bankruptcy Claim under Korean Debtor Rehabilitation and Bankruptcy Act. The author think, in order to solve this issue, make sure that in situation of trustee in bankruptcy doesn`t perform foundation claims, is not always arisen penalty for a nonperformance. If it becomes obvious that the bankrupt estate is insufficient to satisfy the total foundation claim, the satisfaction of the foundation claim shall be made in proportion to the amount of claim not paid, regardless of the priority prescribed by the Acts and subordinate statutes. Therefore trustee in bankruptcy follow this law and doesn`t perform foundation claims to satisfy in proportion to the amount of foundation claim not paid, that period of time any penalty for a nonperformance doesn`t occur. Nevertheless bankrupt estate is not insufficient to satisfy the total estate claim, trustee in bankruptcy doesn`t perform foundation claims, that make penalty for a nonperformance. And that penalty for a nonperformance is also foundation claims under Korean Debtor Rehabilitation and Bankruptcy Act. Lastly I suggest de lege ferenda Korean Debtor Rehabilitation and Bankruptcy Act that policy foundation claims should change priority bankruptcy Claim.

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