회생절차와 사고신고담보금 관련 법률관계

Abstract

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.