Law Firm LLC et al., Counsel for defendant-appellant

Attorney Kim Young-Gyeong et al., Counsel for the defendant

Han field Law Firm, Attorney Han-chul et al.

[Defendant-Appellant]

The costs of appeal are assessed against the Plaintiff.

1. Facts and the major issues of the instant case as to the first ground for appeal

A. Factual relations

The reasoning of the lower judgment and the record reveal the following facts.

1) On March 20, 2008, the Defendant entered into an agreement on March 20, 2008 (hereinafter referred to as 'the 'the 'the 'the 'the 'the 'the ''), under which the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the '')' management and operation rights for the above 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the '

2) On February 7, 2011, 201, she constructed underground parking lots and ancillary facilities (hereinafter referred to as “instant underground parking lots, etc.”) on the fourth and fourth underground floors and the first floor size of the ground in the Daejeon Pungdong-gu (hereinafter omitted), and completed the registration of ownership transfer due to donation to the Defendant. On February 16, 2011, she was granted the right to manage and operate the instant underground parking lots, etc. by the Defendant.

3) On July 6, 2011, the Defendant entered into an agreement on the amendment of the concession agreement (hereinafter referred to as the “instant concession agreement”) with the Rodex Co., Ltd. (hereinafter referred to as “Odex”) which received management and operation rights of the instant underground parking lots, etc. from the Madex, with the same content as the above concession agreement between the Madex and the Defendant. On the same day, the Defendant terminated the registration of the manager regarding the management and operation rights of the instant underground parking lots, etc. in the future of the ridex.

4) On July 6, 201, the date of the conclusion of the instant concession agreement, Lex borrowed KRW 14.5 billion from Green Damage Insurance Co., Ltd. (hereinafter “NE”) and on the same day, Lex created a collateral security (the maximum bond amount of KRW 18.85 billion, and debtor Lex) regarding the management and operation rights of Lex under the instant concession agreement regarding Green Damage Insurance.

5) The Green Damage Insurance was declared bankrupt on November 1, 2013, and the Plaintiff was appointed as the bankruptcy trustee on the same day, and the Rix was declared bankrupt on June 5, 2014, and the Nonparty was appointed as the bankruptcy trustee on the same day (hereinafter “the bankruptcy of Rix”) (hereinafter “the bankruptcy of this case”).

6) On July 11, 2014, the Nonparty notified the Defendant that the instant concession agreement will be terminated upon obtaining permission from the bankruptcy court.

7) On March 10, 2015, the Plaintiff received an order for the attachment and assignment of the claim based on subrogation against the non-party’s non-party in bankruptcy at the time of termination of the instant concession agreement with the non-party’s claim of KRW 10.6 billion, which occurred under Articles 60 and 61 of the instant concession agreement. The said order was served on the Defendant on March 11, 2015, and became final and conclusive on March 28, 2015.

B. The first issue on the ground of appeal

The instant concession agreement is a public-private partnership project based on the so-called BO (BOd-Transferer -O) method, which is implemented at the time of completion of the construction of infrastructure and at the time of completion of the construction of infrastructure and at the same time by the State or a local government, the ownership of the relevant infrastructure belongs to the State or a local government and the project implementer recognizes the management and operation rights for a certain period of time.

In the case of the instant underground parking lot, etc., the owner of the instant underground parking lot, etc. transferred the ownership to the Defendant, and the Defendant also established management and operation rights to the Dominc and its transferee Dominctex and went into bankruptcy while the Dominctex was operating the parking lot business.

The trustee in bankruptcy of Rite asserts the right to terminate the contract under Article 335 (1) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter "the Debtor Rehabilitation Act"). In the event that the agreement is terminated after early termination under Articles 60 and 61 of the concession agreement of this case, the plaintiff asserted that the amount to be settled when the agreement is terminated under the earlier termination under Articles 60 and 61 of the concession agreement of this case had occurred as a result of the exercise of the above right to terminate the contract, and received an order to seize and seize the claim for the amount to be paid at the time of termination of the above amount KRW 10.6 billion, calculated by depreciatte by depreciating the amount of 14.8779 billion, which is the amount to be settled, into the fixed rate method. Whether the trustee in bankruptcy is entitled to exercise the above right to terminate the contract can be determined based on whether the instant concession of this case constitutes "a bilateral contract" in the stage of operating the underground parking lot, etc. of this case.

In other words, the key issue of this case is whether the phase at which Lddex operates the instant underground parking lot, etc. under the instant concession agreement can be seen as one party’s non-performance status, which is the subject of the termination right under Article 335(1) of the Debtor Rehabilitation Act.

In this case, when a concessionaire of a concession agreement under the Private Investment Act goes bankrupt, the court does not determine whether the trustee in bankruptcy can exercise the right to terminate the bilateral contract which is not performed by both parties under the Debtor Rehabilitation Act. It does not mean that the court uniformly determines “whether the right to terminate the concession agreement can be exercised at the stage of operation of the concession agreement in the form of BTO” in accordance with abstract criteria.

The judgment on this part is based on the specific factual basis of the instant case. However, to the extent necessary to determine, whether the trustee in bankruptcy in the Ridex may exercise the right to terminate under the Debtor Rehabilitation Act, the right to terminate the contract under the Debtor Rehabilitation Act, the right to terminate the contract under the former Public-Private Partnerships Act, etc. (where the trustee in bankruptcy legitimately exercises the right to terminate the contract under the Debtor Rehabilitation Act, it shall be separately determined whether Articles 60 and 61 of

2. Legislative history and Supreme Court precedents under Article 335 of the Debtor Rehabilitation Act

A. Change in the provisions on the cancellation and termination of bilateral contract by both parties (hereinafter referred to as "the termination provisions of this case")

Article 50(1) of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation Act, Act No. 7428 of March 31, 2005) provides that "if both the bankrupt and the other party with respect to bilateral contracts have not yet completed the performance thereof at the time bankruptcy is declared, the bankruptcy trustee may rescind the bilateral contract at his option," and Article 103(1) of the former Company Reorganization Act (repealed by Article 2 of Addenda to the Debtor Rehabilitation Act, Act No. 7428 of March 31, 2005) also stipulates that "The trustee may cancel the bilateral contract at his option, if both the bankrupt and the other party have not completed the performance thereof at the time of the declaration of bankruptcy."

Article 335(1) of the former Bankruptcy Act and the former Company Reorganization Act enacted by a single Act as a whole in 2005 provides that “If both the debtor and the other party to a bilateral contract have not yet completed the performance of the bilateral contract at the time bankruptcy is declared bankrupt, the trustee in bankruptcy may rescind or terminate the bilateral contract.” On the other hand, some special provisions were newly established on the rescission or termination right of the trustee in bankruptcy regarding bilateral contract not performed by both parties. The termination provisions of the instant case grant a special right to revise or modify the existing legal relations formed between the debtor and specific interested parties in order to achieve the purpose of the bankruptcy procedure, and where it is recognized uniformly in the bilateral contract relationship, unjust consequences may arise.

First, if a lessor becomes bankrupt since the enforcement of the former Bankruptcy Act, if a lessor’s trustee in bankruptcy cancels a lease agreement pursuant to the provisions on termination of this case, it would immediately lose the right of lease without any guarantee pursuant to Article 635 of the Civil Act, which is a mandatory provision. Accordingly, there was criticism that the Debtor Rehabilitation Act was unjustifiable. In reflecting this, the Debtor Rehabilitation Act provides that even if a lessor goes bankrupt pursuant to Article 340(4), the trustee in bankruptcy cannot terminate the lease agreement pursuant to the provisions on termination of this case with respect to a lessee who meets the requirements

또한 이 사건 이후 2014. 5. 20. 법률 제12595호로 제335조 제3항을 신설하여 파산관재인이 방위사업법 제3조에 따른 방위력 개선사업 관련 계약을 해제·해지 하려는 경우 방위사업청장과 협의하도록 함으로써 국가의 안전보장 및 방위산업의 경쟁력 강화라는 방위사업법의 입법취지 및 방위력개선사업 관련 계약의 특수성을 반영하였다.

The application of the instant termination provision is restricted even in cases where the legal characteristics of an individual contract and the legal status of the parties stipulate special provisions concerning bilateral contracts which are not performed by both parties under individual laws, such as the Civil Act. Therefore, when a contractor goes bankrupt (Article 674 of the Civil Act) or one of the parties to a contract goes bankrupt (Article 690 of the Civil Act), and there is no room to apply Article 335(1) of the Debtor Rehabilitation Act concerning the cancellation or termination of bilateral contracts which are not performed by both parties (see Supreme Court Decision 2001Da13624, Aug. 27, 2002).

B. Supreme Court precedents on the interpretation of the termination provision of this case

1) Purport of the termination provision of this case

The instant termination provision is a common rule of bilateral contract made with the purport of protecting the interests of the bankruptcy estate by rescinding the contract or recognizing the option of claiming the performance of the other party’s obligation, and at the same time protecting the interests of the other party who responded to the choice that the bankruptcy trustee had taken place (see, e.g., Supreme Court Decision 2001Da24174, 24181, Oct. 9, 2001). In short, the debtor’s liquidation is smoothly and efficiently involving the debtor’s economic distress and, at the same time, balanced adjustment of the interests of all interested parties, including creditors, including creditors, is proceeding promptly and efficiently with the bankruptcy procedure. If the other party’s claim, which becomes a bankruptcy claim, is originally made by prescribing as estate claims under certain circumstances, thereby ensuring equity between the debtor’s right

Among them, if the trustee in bankruptcy selects the termination of the contract, the provision of this case is an exception to the right to cancel or terminate the contract, which is generally accepted by the provisions of the contract or the law, even if there is no default on the other party.

Therefore, the termination provision of this case applies to cases where one of the parties to a bilateral contract, which has legal and economic relations and functions as a collateral in principle, has become bankrupt when both parties have not yet completed performance (see, e.g., Supreme Court Decision 2001Da24174, 24181, etc.).

2) Requirements for applying the termination provisions of this case

The requirement that both parties’ executory bilateral contract is effective and that both parties’ obligations are not fulfilled. The meaning of bilateral contract is closely related to the meaning of “other parties’ obligations in an executory condition.” The “debtor and the other party’s obligations” refer to the failure to perform all or part of the contractual obligations under the bilateral contract, which are mutual equivalent to the other party’s contractual obligations (see, e.g., Supreme Court Decisions 2005Da38263, Sept. 6, 2007; 2013Da16305, Sept. 26, 2013). Even if the contractual obligations are related to the contractual obligations, any incidental obligation that cannot be claimed does not constitute an executory part (see, e.g., Supreme Court Decision 92Da56865, Jan. 11, 1994).

"Bilateral contract not performed by both parties" refers to a situation in which all or part of the contractual obligations under the contract which functions as security is not performed because both parties have legal and economic relations between themselves, such as the establishment, performance, and existence of existence, and the performance of all or part of the contractual obligations which function as security, and even in relation to contractual obligations, it does not constitute a simple obligation to cooperate.

Where a company is incorporated under a joint venture agreement and the obligation to cooperate with one another for the exercise of voting rights to the company established as stipulated in the agreement or for the formation of the board of directors remains, such obligation cannot be acknowledged (see Supreme Court Decision 2005Da38263, Apr. 11, 200). It is difficult to view that the obligation of the representative in the joint venture agreement to first pay the construction cost and the obligation of the members to reimburse the contributions to the representative company as a quid pro quo in consideration of each other’s contractual obligation (see Supreme Court Decision 9Da6059, Apr. 11, 200). If the representative in the joint venture agreement has completed the performance of an obligation to cooperate with one another for the purpose of exercising voting rights to the company established as stipulated in the agreement, or for the formation of the board of directors, etc., of the said agreement, and the obligation of the contractor to complete the bilateral contract cannot be deemed as a quid pro quo of each other’s contractual obligation (see Supreme Court Decision 200, Apr. 14, 20197).

(3) The effects of the event that both parties fail to perform bilateral contracts

Inasmuch as a contract constitutes an executory bilateral contract, the legal status of a debtor who is undergoing bankruptcy procedures or rehabilitation procedures and the other party’s legal status may vary depending on whether the contract constitutes an executory bilateral contract, and accordingly, the establishment and scope of a claim may be considerably affected. In a case where both parties’ executory bilateral contract is rescinded and terminated in bankruptcy proceedings, the other party loses his/her claim under the contract even though he/she does not perform his/her obligation, and instead holds only a claim for restitution as an estate claim and a claim for damages as a bankruptcy claim. On the other hand, when both parties fail to perform bilateral contract, the other

C. Sub-committee

In order to constitute an executory bilateral contract, both parties’ obligations are legally and economically related to each other’s obligations, and thus functions as security. If the non-performance part is merely a “passive obligation,” this does not apply. Even if the content at the time of the contract constitutes an executory contract, it applies only when the obligor and the other party have not completed the performance at the time of declaration of bankruptcy. As such, the meaning of “non-performance of both parties” should be determined by examining the stage of performance at the time of one bankruptcy, rather than uniformly determined under the terms and conditions of the contract at the time of the contract, rather than uniformly determined by the agreement at the time of the bankruptcy. In such a case, the legislative intent of the law that serves as the basis for the contract, the legal effect and economic impact of the exercise of the right to rescission and termination upon the parties concerned. In light of the legal characteristics and contents of the individual contractual relationship, in cases where the contractual relationship consists of various rights and obligations, and the relationship between the rights and obligations at the next stage is formed, the other party’s right to rescission and termination should be determined by the agreement.

3. Special characteristics of public law in concession agreement under the former Public-Private Partnerships Act;

A. Purpose of legislation of the former Private Investment Act

The purpose of "private investment" is to secure the operation of, and the right to benefit from, facilities within a certain scope in order for the State, local governments, etc. (hereinafter referred to as "State, etc.") to take into account the survival of the people through the construction and operation of public facilities. The purpose of using private capital and technology in the expansion and operation of infrastructure is to cope with the necessity of the expansion of investment in infrastructure due to rapid industrialization and the expansion of economic scale, and to overcome the shortage of financial resources in the public sector and the inefficiency thereof (see Constitutional Court Order 2007HunBa63, Oct. 29, 2009).

(b) Classification by business operation method;

The method of implementing a private investment project shall be one of the methods prescribed in the former Public-Private Partnerships Act (Article 4 of the former Public-Private Partnerships Act), and the method of the private investment project shall be divided into the time when ownership of the infrastructure is attributed to the State or a local government at the time of completion of the infrastructure and the time when the right to manage and operate the infrastructure is exercised, and the project implementer shall be granted the right to manage and operate the infrastructure at the time of completion of the infrastructure and at the time of completion of the project (BTO method).

(c) Characteristics of legal relations formed by the concession agreement;

The implementation of a project under a concession agreement shall comply with the provisions of the Public-Private Partnerships Act and the relevant Acts, and the concessionaire may not perform any project other than the one recognized at the time of designation of the concessionaire, and there are restrictions or modifications, such as the prior approval of the competent authority at the time of disposal and operation rights or an alteration of investors. Therefore, the rights and duties acquired by the concessionaire, etc. under a concession agreement between the concessionaire and the State, etc. are different from the rights and duties acquired by the parties

The implementation of a project under a concession agreement shall comply with the specific procedures, etc. prescribed by the Public-Private Partnerships Act and relevant Acts. First, the State, etc. shall designate the concessionaire by concluding a concession agreement with potential concessionaire, including the conditions for the implementation of the project, such as total project cost, the period of use, etc

Before implementing a private investment project, the concessionaire shall prepare the implementation plan of the project and obtain approval from the competent authority (Article 15 of the former Public-Private Partnerships Act), and the expropriation or use of land, goods, or rights may be made in accordance with the procedure prescribed by the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Article 20 of the former Public-Private Partnerships Act), and the conclusion of the concession agreement shall also cause the designation of the concessionaire

In addition, the project implementer shall comply with supervision and orders of the competent authority based on the former Public-Private Partnerships Act and relevant laws (Article 45(1) of the former Public-Private Partnerships Act). If it is unilaterally necessary for the public interest, the competent authority may change the contents of the use of the facilities (Article 29 of the former Public-Private Partnerships Act) or take measures for the public interest

In the case of a public-private partnership project promoted through BO, infrastructure established as such shall be managed and operated in accordance with the concession agreement (Article 24 of the former Public-Private Partnerships Act). The State, etc. may grant the concessionaire the right to maintain and manage the infrastructure which the concessionaire completed and reverts to the competent authority for free use and profit-making, and to collect the user fee from the user of the infrastructure. The management and operation right is, in principle, recognized as a real right to which the provisions on real estate in the Civil Act apply mutatis mutandis under the former Public-Private Partnerships Act (Articles 26(1) and 27(1) of the former Public-Private Partnerships Act). The concessionaire who has registered the management and operation right shall be responsible for the appropriate maintenance and management of the infrastructure (Article 26

4. Whether the termination right of the trustee in bankruptcy is recognized (ground of appeal No. 1)

A. Whether the requirements for termination of legal relations in public law are satisfied

Article 335(1) of the Debtor Rehabilitation Act regarding the termination of bilateral contracts by both parties may also be applied or analogically applied to legal relations with the special nature of bilateral contract. In such cases, the attitude of the Supreme Court precedents examining the legal characteristics and content of individual contractual relationship, such as the consideration for the remaining benefits, dependence, and checks, etc., based on the legal characteristics and content of the individual contractual relationship, should also be taken into account in cases where a concessionaire of the instant concession agreement becomes bankrupt under the former Public-Private Partnerships Act and Article 335(1) of the Debtor Rehabilitation Act applies mutatis mutandis to cases where the concessionaire of the instant concession agreement becomes bankrupt. In other words, in determining whether to exercise the right of termination by bilateral contract not being performed by both parties, the determination ought to be made by comprehensively taking into account the legislative intent and characteristics of the former Public-Private Partnership Act, the degree

B. Whether to exercise the right to terminate the concession agreement of this case

1) In full view of the legislative intent of the right of termination under the Debtor Rehabilitation Act, the attitude of interpretation and precedent, the contents of the former Public-Private Partnerships Act, and the nature and content of the concession agreement of this case at the time of the bankruptcy of this case, and the content and legal nature of the management and operation rights held by the ridex at the time of the bankruptcy of this case, the legal relationship between the ridex and the defendant cannot be deemed as a mutual equal consideration relationship. ② There is no legal relationship between the ridex and the defendant, and ③ rather, by granting the management and operation rights already granted prior to the bankruptcy of this case, it is reasonable to deem that the Defendant completed the execution of the “liability that functions as a mutual security” under the concession agreement of this case, with mutual recognition, performance, and continued legal and economic checks as a debt with mutual equivalent consideration.

2) Whether the legal relationship between Lidex and the Defendant at the time of bankruptcy is on a mutually equal price relationship

A) We examine legal relations pertaining to the ownership of the facility completed by the project implementer.

The legal relationship in which ownership of infrastructure completed belongs to the State, etc. and the State, etc. establishes management and operation rights of the infrastructure for a certain period of time to the project implementer is based on the provisions of the former Public-Private Partnerships Act.

In accordance with the BTO method, the former Public-Private Partnerships Act provides that the ownership of the relevant infrastructure shall vest in the State, etc. upon completion of the infrastructure (Article 4 subparag. 1); and the instant concession agreement also provides that “the ownership of the project facility shall vest in the defendant at the time of completion of the construction of the project facility” and provides that “the ownership of the project facility shall vest in the defendant at the same time” (Article 9(1) of the instant concession agreement). Therefore, it is reasonable to deem that the legal relation of the transfer of the right to the facility to the defendant by Htttttex is the result attributable to the defendant pursuant to the above legal provision, rather than the “performance of the obligation.” Under the instant concession agreement, HttttT has the obligation to cooperate with the prosecutor related to the procedure for confirmation of completion of the facility, such as the presence of the public prosecutor related to the procedure for confirmation of completion of the facility, site site site, etc., if the defendant returns it (Article 37 through 39 of the instant concession

Therefore, the transfer of facility ownership and the establishment of management and operation rights, and the claims and obligations arising between the contracting parties under private law, cannot be evaluated as equal consideration relationship. Meanwhile, the conclusion of a concession agreement that causes the effect of designation of a concessionaire to the other party (Article 13 of the former Public-Private Partnerships Act), and the relationship between a project operator and the State, etc. cannot be viewed as equal consideration relationship as a legal relationship with the nature of public law.

B) We examine legal relations after the establishment of management and operation rights.

On February 2, 201, prior to the declaration of bankruptcy of the instant case, the ownership of the instant underground parking lot, etc. and the establishment of management and operation rights are completed. Article 26(2) and Article 27(1) of the former Public-Private Partnerships Act explicitly states that the management and operation rights granted to a project implementer are real rights. Accordingly, not only the rights of the Defendant as an owner of infrastructure, but also the rights of the ridex, a project implementer, as the right of the management and operation rights, are also the rights of the ridex. In light of the nature of the management and operation rights as a real right, the Defendant’s obligations have meaning as passive obligations not to interfere with the management and operation rights of the ridex. Ultimately, this part of the obligation of the Defendant is not the obligation to be borne separately according to the instant concession

If it is interpreted that the project implementer is in a quid pro quo relationship with various obligations of the project implementer by organizing the status of the management and operation right to use the business facility as a judicial obligation of the competent authority, it would be contrary to the positive law, such as the former Public-Private Partnerships Act, which specifies the management and operation right as a real right. Moreover, if the plaintiff is the trustee in bankruptcy of the green damage insurance, and the trustee in bankruptcy claims the whole amount of the management and operation right after being subject to seizure and the order of the right of separation from bankruptcy in bankruptcy proceedings against ridex. If it is denied that the management and operation right is a real right, it would not only be contrary to the provisions of the Public-Private Partnerships Act, but also be contrary to the conflict that the plaintiff's claims lose

C) In other management and operation stages, whether a project implementer and the State are placed in a quid pro quo legal relationship.

Matters determined by the former Public-Private Partnerships Act and the concession agreement of this case concerning the management and operation phase are as follows:

It is based on the provisions of the former Public-Private Partnerships Act that the project operator may use and benefit from the site and business facilities without compensation until the expiration of the operation period, notwithstanding the provisions of the State Property Act or the Local Finance Act, if the contract is concluded to enable the ridex to use and benefit from the site and business facilities without compensation (Article 19(4) of the former Public-Private Partnerships Act, Article 10 of the concession agreement of this case) and the ridex to use and benefit from the site and facilities owned by the Defendant.

In the event of force majeure, etc., the defendant shall cooperate in changing the total project cost or adjusting parking fees (Article 23(3) of the former Enforcement Decree of the Public-Private Partnerships Act (amended by Presidential Decree No. 23284, Nov. 4, 201; hereinafter referred to as the "former Enforcement Decree of the Public-Private Partnerships Act"), Articles 13(1) and 47(4) of the concession agreement of this case], and conduct parking control without delay upon request by the Richix (Article 49(3) of the concession agreement of this case).

As prescribed by the former Public-Private Partnerships Act and relevant Acts and subordinate statutes, the Defendant, in the position of the competent authority, may supervise the project executor’s business related to the project and issue an order necessary for supervision to the extent that it does not undermine the free management activities of the project executor (Article 45(1) of the former Public-Private Partnerships Act). Article 30(1) of the concession agreement of this case also provides for the same content. If the project executor violates the order, the competent authority may take necessary measures after undergoing the hearing procedure (Articles 46 and 48 of the former

The entity shall be bound to observe all relevant Acts and subordinate statutes relating to its business as the concessionaire, and shall faithfully endeavor to ensure that the construction, maintenance, management, and operation of the business facilities may be promoted in a successful manner (Article 8(1) of the concession agreement of this case). The entity shall maintain, manage, and operate the facilities vested in it during the period specified in the concession agreement of this case (Article 8(2) of the Convention). The entity shall submit to the Defendant the performance records, maintenance, management plans, operation plans, etc. during the operation period (Articles 42 and 43 of the concession of this case).

The instant duty to maintain and manage the instant underground parking lots does not constitute a quid pro quo relationship that one party bears with the other party. This is because HHT and the Defendant’s duty to pay the said duty to the general public along with the parking lot operator (see Article 5 of the State Compensation Act), and the Defendant also bears the duty to install and manage the parking lot as the owner of the parking lot, etc., which is a public structure (see Article 5 of the State Compensation Act). The Defendant’s non-compliance with parking regulation is not a private duty to a project operator, but a duty to the public, a parking lot user, who is performed for the purpose of

In addition, in the event of a force majeure event, etc., the obligation of the Defendant to either change the total project cost or to cooperate in the adjustment of parking fees is only incidental to those applicable only to conditional cooperative obligations or household circumstances that may arise or may not arise, and in the instant case, the Defendant’s duty of cooperation did not occur first because ridex requested the Defendant to change the project cost or adjust parking fees. The obligation to cooperate or incidental obligations as above do not fall under the non-performance portion (see Supreme Court Decision 92Da56865, supra).

The Defendant’s supervisory duty is not the party to the concession agreement, but the authority and responsibility of the competent authority for private investment projects. The obligation to comply with the statutes, the obligation to operate facilities, and the obligation to submit operation plans, etc. are all corresponding to the obligation of the concessionaire.

Meanwhile, Htex is responsible for the design, construction, maintenance, management, and operation of business facilities, the financing of funds, and the implementation of other agreements, and bears the risks stipulated in the instant concession agreement (Article 8(2) of the instant concession agreement). In principle, Ltex shall perform this project at its own risk and cost except as otherwise provided in the instant concession agreement (Article 8(4)). Total project cost shall not be modified except as otherwise provided in the instant concession agreement (Article 12). The financing for the implementation of the project shall be promoted under the responsibility of the concessionaire (Article 14). In cases where the actual demand for the use of the business facilities differs from the demand for the prediction of the facilities stipulated in the instant concession agreement, unless otherwise stipulated in the instant concession agreement (Article 51). In full view of the content of risk sharing as stipulated in the instant concession agreement, characteristics of BOT method, management and operation, etc., there is no risk relationship between the concessionaire and the instant concession agreement.

Ultimately, even if both parties are obliged to bear the obligation at the stage of the management and operation of the instant concession agreement, it is merely a re-verification of the other party’s passive obligation that should not be interfered with as it is imposed under the former Public-Private Partnerships Act or granted a real right such as management and operation rights, or it is difficult to recognize the “an equivalent consideration relationship” among the obligations as an incidental obligation arising from a family situation.

3) Whether the legal relationship between the project operator and the State, etc., at the time of bankruptcy, have "legal and economic relationship in terms of establishment, implementation, existence, and existence"

The instant concession agreement deals with the legal relationship during the period of construction and operation for a long time. However, it should not be treated equally as having been declared bankrupt at any stage of a contract solely on the ground that the instant agreement is continuous contract, and should not be determined as an executory bilateral contract. In full view of the fact that the legal relationship at each stage of a contract under the Act on Private Participation and a concession agreement is distinct, each specific case ought to be closely related to the non-performanceal legal relationship.

The former Public-Private Partnerships Act provides for the formulation phase of the annual plan (section 1 of Chapter II), the implementation phase of infrastructure facilities projects (section 2 of Chapter II), and the management and operation phase of infrastructure facilities (section 3 of Chapter II), and the other party to the main purpose and rights and duties at each stage are different in the form of mixing with various rights and duties at each stage.

First of all, in the implementation stage of infrastructure facilities project (BTO method), entry into land, expropriation and use of land, confirmation of completion, etc. is mainly involved in the construction and completion of infrastructure facilities project, while in the management and operation stage of infrastructure facilities project (BTO method), the collection of expenses through appropriate management and operation of infrastructure facilities is different from the main purpose of each phase.

At the implementation stage of infrastructure facilities projects, only the relationship between a project operator and the State, etc. is problematic, but not only the relationship between a project operator and the State, etc., but also the relationship between a project operator and a facility user who is a general citizen, and rather, the recovery of expenses, which is the main purpose of the project operator, is achieved in relation to facility users. The instant concession agreement clearly separates the implementation stage of infrastructure projects and the management and operation stage of infrastructure facilities, and the project operator is obliged to bear the responsibility for financing in the management and operation stage as well as in the implementation stage.

Therefore, it should be examined whether there is legal and economic relationship on the basis of the obligations of both parties remaining in the management and operation phase of the instant concession agreement, and whether there is legal and economic relationship on the basis of the establishment, implementation, and continued existence.

First of all, since the performance of each of the obligations of Lidex and the Defendant scheduled in the implementation stage of the social infrastructure project is completed, it cannot be determined that there exists the legal relationship and relationship in the management and operation stage for the legal relationship in the implementation stage.

Next, it is difficult to view that the legal relations between the two parties determined at the stage of management and operation of infrastructure have mutual connection and legal and economic relations on the basis of the existence of both parties’ obligations at the stage of management and operation as seen earlier. Moreover, even if they exist at the stage of management and operation, it is difficult to recognize that there exists an equal payment relationship. Furthermore, even if they are assumed as the Defendant’s obligations, it is difficult to present the opposite duty of ridex with legal and economic connections on the establishment, implementation, and continuation of the obligation, even if they are assumed as the Defendant’s obligations, and the Defendant’s remaining obligations are difficult to find. Therefore, it is difficult to view that ridex and the Defendant’s legal relations at the time of bankruptcy have mutual association with each other in terms of the establishment, implementation, and continued legal and economic relations on the ground of the existence, performance, and existence of the obligation.

4) Whether the Defendant completed the performance of the concession agreement of this case

The contents of the concession agreement vary depending on the characteristics of the “facilities subject to construction”. Therefore, it is difficult to uniformly determine whether the parties to the contract have the contractual obligation to perform the management and operation phase, on the ground that the concession agreement under the Private Investment Act has reached the management and operation phase, and the contractual obligation is not fulfilled.

In the end, this can only be judged differently according to the contents of the concession agreement concluded between the parties.

In the instant concession agreement, there is no provision regarding financial support by the Defendant for compensating for the shortage of minimum revenues. The Defendant’s legal relationship existing in the instant concession agreement is terminated, in principle, by granting the right to manage and operate a business facility. As seen earlier, other legal relations are procedures prescribed by the former Public-Private Partnerships Act to facilitate a private investment project, duties held by the competent authority, or duties for the people using the instant underground parking lot, etc. In addition, the ownership of infrastructure or the right to manage and operate the instant infrastructure cannot be deemed as a simple contractual obligation. Moreover, the fact that the ownership of infrastructure or the right to manage and operate the instant instant concession agreement at the stage of management and operation cannot be seen as a mere obligation under the private law. Moreover, it is nothing more than a passive obligation not to interfere with the Defendant’s management and operation right, which is a real right, rather than a fundamental obligation. Accordingly, it is reasonable to deem that the Defendant’s obligation to

5) The conflict and moral hazard with the Defendant’s right to terminate the contract

The Defendant holds the right to terminate the concession agreement on the ground of bankruptcy of the concessionaire under the concession agreement (Articles 53(1)3 and 58(1) and (4) of the concession agreement). If the Defendant exercises the right to terminate under the concession agreement, the amount of payment shall be calculated and paid to the concessionaire at the time of termination, and, in calculating the amount, the amount that the competent authority has to receive from the concessionaire, such as the obligation which the concessionaire has been exempted from liability under the relevant Acts and subordinate statutes due to the failure to complete repayment (Articles 60(6)2 and 61(2) of the concession agreement of this case).

In this case, if the Defendant terminates the above agreement pursuant to Article 58(1) of the concession agreement of this case, the damages incurred to the Defendant due to the suspension of business of the Defendant, such as the incidental facility lease deposit to be accepted by the Defendant, operating expenses subrogated by the Defendant, or compensation for damages, may be compensated in the calculation process of payment upon termination under the concession agreement of this case.

However, unlike the instant concession agreement, the Plaintiff asserted the termination of the term under the terms of termination, and the Defendant’s damage claim, etc. are merely bankruptcy claims and seek to refund almost almost all of the construction costs invested by the project implementer in lump sum on the premise that the Defendant cannot be arbitrarily deducted. This contradicts the essence of the former Public-Private Partnerships Act, which aims to contribute to the development of the national economy by promoting the creative and efficient expansion and operation of infrastructure by facilitating the investment of the private sector by constructing infrastructure at the expense of the project implementer and collecting the construction cost of infrastructure and the operating cost

Furthermore, the period of long-term management and operation is determined on the basis of expected operating revenues calculated by the concessionaire at the time of conclusion of the concession agreement, as the period for which the concessionaire would normally operate the parking lot and recover the project cost invested by the concessionaire. Although the aforementioned circumstances and the risks associated with the failure of operation of the underground parking lot, etc. of this case are repeatedly stated that the concessionaire bears the burden (Article 8(2), (4), and Article 51 of the concession agreement of this case), if the trustee in bankruptcy may terminate under the provisions of the termination of this case, the risks of operation of the infrastructure may cause unfair problems that may be transferred from the concessionaire to the State, etc. through bankruptcy proceedings to the State, etc. This goes against the language and text of the concession agreement to prevent the Defendant from unfairly passing on the loss caused by the early suspension of operation by deducting all liabilities and losses borne by the State, etc. at the time of termination due to the bankruptcy of the concessionaire. Ultimately, it is likely that the concessionaire and the creditors of the concessionaire may attempt to temporarily recover the costs from the State, etc. using the bankruptcy proceedings.

In this case, the conclusion denying the trustee in bankruptcy from exercising the right to terminate, rather than avoiding the Debtor Rehabilitation Act, it does not compel the trustee in bankruptcy to implement the project. As long as the trustee in bankruptcy proceedings had already been initiated, the agent in bankruptcy, the holder of the right to separate settlement, and the Plaintiff and the Defendant, who are the holder of the right to separate settlement, distribute the amount realized according to the priority of the right and the amount of the claim by realizing the property. The management and operation right, as a real right, can be converted from the market price in the bankruptcy proceedings of the agent in bankruptcy of the agent in bankruptcy, the Plaintiff and the Defendant, through consultation,

In addition, the Defendant, as a local government, designated a substitute business operator under the former Public-Private Partnership Act and the instant concession agreement, or requested the Defendant to submit data to calculate the payment upon termination of the contract. However, the Defendant asserted that the trustee in bankruptcy of the instant concession agreement could not unilaterally terminate the said contract through the non-Cooperation of the HHE. The trustee in bankruptcy of the HHE has no reason to comply with the matters stipulated in the former Public-Private Partnership Act and the instant concession agreement.

C. Conclusion

Therefore, it is difficult to view that the legal relationship between ridex and the Defendant at the time of the bankruptcy of the instant case constitutes both executory bilateral contract under Article 335(1) of the Debtor Rehabilitation Act. The termination right by the ridex trustee is not acknowledged. The lower court’s determination is justifiable. It is so agreed as per Disposition by the assent of all participating Justices, as otherwise alleged in the grounds of appeal, did not err by misapprehending the legal doctrine on the interpretation and application

5. As to the remaining grounds of appeal by the Plaintiff

The lower court rejected the Plaintiff’s assertion that the instant concession agreement was terminated by the Defendant’s exercise of the Defendant’s right to terminate the instant concession under Article 58 of the instant concession agreement, or that the instant concession agreement was terminated by the exercise of the right to terminate under Article 637(1) of the Civil Act of Appellant, the Bankruptcy Party.

In light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the interpretation of declaration of intention or the nature of concession agreement.

6. Conclusion

The Plaintiff’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices, except for a separate opinion by Justice Ahn Jae-chul and a dissenting opinion by Justice Kim Jae-hyung, Justice Park Jung-hwa and Justice Lee Dong-gu on the First Ground for

7. Concurring Opinion by Justice Ansan-chul

A. Application of public contract and judicial provisions by analogy

1) The key issue of the instant case is whether the trustee in bankruptcy of ridex may terminate the instant concession agreement under Article 335(1) of the Debtor Rehabilitation Act.

Even if the concession agreement reached the stage of management and operation in a public-private partnership project based on the Private Investment Act, it is reasonable to view that the nature of both parties’ executory bilateral contract remains intact. It is difficult to agree with the Majority Opinion to deem that the obligation at the stage of management and operation does not constitute an executory obligation on the grounds that it is an incidental obligation. This is because the instant concession agreement continues to be a continuous contract whose legal relationship at each stage is not separated, and is still the Defendant’s obligation to assume. The Majority’s interpretation cited as the basis of an incidental obligation refers to a prolonged continuous contract, and it does not mean that the Defendant’s performance of the obligation to the

On the other hand, in the instant case, the bankruptcy of Riteex was caused by the concessionaire’s cause without any cause attributable to the Defendant. Nevertheless, the bankruptcy trustee of Riteex may rescind the concession agreement and claim a lump-sum payment for a large amount of termination under Article 335(1) of the Debtor Rehabilitation Act on the ground of bankruptcy does not coincide with the purpose of the concession agreement for private investment projects implemented by BTO, but goes against the fundamental purpose of the Private Investment Act. Accordingly, the view that the bankruptcy trustee of Riteex may terminate the concession agreement on the ground that the concession agreement of this case is an executory bilateral contract cannot be accepted.

The instant concession agreement constitutes a public law contract based on which the establishment thereof is established under the Private Investment Act. In the case of public law contracts, if the termination right recognized under the relevant Acts and subordinate statutes is exercised, it shall be deemed that the exercise of such right is restricted if the outcomes are essentially contrary to the accomplishment of administrative purpose and cause serious infringement on the public interest. In light of the characteristics of the contract in public law, the relevant provisions of the Public-Private Partnerships Act, and the comparison and balancing between the public interest and private interest, etc., the instant concession agreement constitutes a bilateral contract not performed by both parties, but its termination on the grounds of bankruptcy may cause serious infringement on the public interest by making it difficult to achieve administrative objective and thereby, Article 335(1) of the Debtor Rehabilitation Act cannot

2) The public law relations is not primarily different from the private law relations, but also aims to distinguish it from the private law relationship. However, since the public law relationship is not yet equipped with the legal system as much as it establishes its originality, there are cases where the provisions of the private law are applied mutatis mutandis in order to avoid the legal gap, and it is also a case where the provisions of the contract under the private law are applied mutatis mutandis to the contract under the public law. It is a general theory that the legal relationship under the public law is a legal relationship regulating the public interest, i.e., the legal relationship regulating the public interest, and such public law relationship has the special characteristics that should be applied by being modified or modified.

In addition, the Debtor Rehabilitation and Bankruptcy Act provides for special provisions different from the Civil Act and the Commercial Act for the debtor's property in bankruptcy, it is intended to obtain the equitable satisfaction of all creditors through appropriate liquidation procedures, which also takes into account the community's view as bankruptcy creditors. A contract in public law should take into account a wide range of community examinations than the community of creditors in that it may affect all community members.

The analogical application of legal provisions does not directly apply to any matter, but gives the same legal effect by analogical application of the legal provisions on a matter of similar nature. This is premised on the fact that the same nature of the case is similar, but is not identical. Even if a contract under a private law and a contract under public law are established by the concurrence of intent of the parties concerned, if there is a difference in the purpose, process, legal effect, etc. of concluding a contract, the judicial provisions may not be applied by analogical application to a contract under public law, or shall be amended and applied to such a extent.

3) As long as the instant concession agreement constitutes a public contract based on the Public-Private Partnerships Act, in principle, the statutory provisions on private contracts may be applied mutatis mutandis. However, whether a provision may be applied by analogy ought to be individually determined depending on the purport of the provision and nature of the case. In light of the aforementioned various circumstances, Article 335(1) of the Debtor Rehabilitation Act should not be applied by analogy to the instant concession agreement. The specific reasons are as follows.

B. The meaning of the contract under public law

1) The term “contract under public law” is an act of public law established with the expression of intent between the parties on an equal basis for the purpose of causing public legal effects (see Supreme Court Decision 2019Da277133, Feb. 4, 2021). In the past, Article 27 of the Framework Act on Administration promulgated on March 23, 2021, stating that “it may enter into a contract on legal relations under public law if necessary to achieve administrative purposes to the extent that the concept of a contract under public law, which was recognized in theories and judicial precedents, is not in violation of the statutes.” In addition, the above provision is applicable only to the case that was concluded after March 23, 2021, and thus, it cannot be applied to the instant concession, but is different from the concept of a contract under public law, which was previously recognized.

This contract in public law is distinguishable from a contract in private law in that it is essential to balance between the public interest and private interest in the conclusion, implementation, and interpretation of the contract in order to achieve the purpose of the occurrence of the effect of public law, and the relationship between the administrative body and the private person is equal, so the administrative body is distinguished from the administrative disposition in superior position against the private person as the subject of public authority.

Administrative disposition is subject to the principle of statutory reservation that is required to be based on the law, but since public contracts are acts by agreement, it can be possible without the basis of law and it can be confirmed through the legislative intent of Article 27 of the Framework Act on Administrative Law to provide the legal basis of public contracts so that administration can be achieved through contracts related to legal relations in public law in response to specialization and diversification of administration. However, even if a contract can be concluded without the basis of law, the principle of statutory superiority that is not contrary to the law should be strictly complied with. Article 27 of the Framework Act on Administrative Law provides that a contract can be concluded to the extent that it does not violate the law, etc. in public law.

2) In Korea, discussions on contracts under public law in Korea, unlike disciplinary action against public officials under the former Local Public Officials Act and subordinate statutes, deemed that the expression of intent to terminate an employment contract with a local public official is not subject to appeal litigation, and that the local government’s declaration of intent to act on an equal basis as one of the parties to the employment contract is not subject to appeal litigation (Supreme Court Decision 92Nu4611 Decided September 14, 1993) and public health doctors (Supreme Court Decision 95Nu10617 Decided May 31, 1995), Si choirs (Supreme Court Decision 95Nu4636 Decided December 22, 1995), Si choirs (Supreme Court Decision 2001Du7794 Decided December 11, 2001), etc., or termination of the employment contract is subject to appeal litigation, but it can be deemed that the contract becomes subject to public law litigation by reflecting the nature thereof under public law and becomes subject to appeal litigation.

In light of the above legal principles, there are many cases where the legal form governing contracts on personal relations does not differ significantly from the legal principles governing appointment and dismissal under the State Public Officials Act, the Local Public Officials Act, or the Labor Standards Act, and there are many cases where the relevant statutes do not expressly provide for the relevant provisions. Therefore, in determining the merits of disputes over contracts under public law, whether the contracting party, who is the plaintiff, was unfairly dismissed or terminated, would normally be examined in accordance with the above legal principles. Therefore, the aforementioned series of Supreme Court decisions were meaningful in that there was little room to prove the special nature of contracts under public law to protect the public interest, and that the right can be relieved through the means of dispute, such as

3) However, the instant concession agreement is based on the Private Investment Act and shall not be in violation of the Private Investment Act and its legal effect, as a public contract, which is not recognized by the Private Investment Act in light of its public nature, shall not be incorporated into the contents of the instant concession agreement. In addition, by applying other Acts, it shall not be allowed to bring about a result contrary to the purport of the instant concession

(c) The concession agreement of this case under public law based on the Private Investment Act;

1) The legislative purpose of the Private Investment Act is to contribute to the development of the national economy through the expansion and operation of infrastructure for the public interest (see Article 1 of the former Private Investment Act). For this purpose, the Private Investment Act provides that the government and the competent authority shall lead from the stage of preparation of the concession agreement of this case to the stage of completion. In other words, the Private Investment Act is obligated to establish and publicly announce basic plans for public-private partnerships (Article 7(1) of the former Private Investment Act

In order to promote an infrastructure project by means of private investment, the relevant project is designated as a solicited private investment project and imposes an obligation to establish and publicly announce a private investment project in accordance with the basic plan for infrastructure projects (Articles 8-2(1) and 10(1) of the former Public-Private Partnerships Act); and the competent authority clearly stipulates that a private investment project may begin only after the State and a local government takes policy decisions. In addition, the competent authority may supervise and order the project implementer’s affairs related to the private investment project, and may take broad measures, including the cancellation of designation of the project implementer for the project implementer’s violation of Acts and subordinate statutes or for the public interest (Articles 46, 47, and 49 of the former Public-Private Partnerships Act). In interpreting the instant concession agreement and by analogical application of the provisions on private contracts,

A) As a result, the conclusion, amendment, termination, etc. of the concession agreement under the public law becomes effective only when it is deemed an administrative disposition pursuant to the provisions of the Public-Private Partnerships Act, or when the relevant administrative disposition of the administrative agency is accompanied. In other words, the competent authority designates potential concessionaire from among those who have submitted the project plan pursuant to the instruction for proposal as publicly notified and executes a concession agreement including the conditions for project implementation, such as total project cost and the period of use (Article 13(3) of the former Public-Private Partnerships Act). In interpreting the provision of this Act in line with the language and text, the act of entering into a concession agreement is deemed to have the nature of entering into the public law contract and the designation of the concessionaire. The instant concession agreement entered into upon the amendment of the concession agreement also has the nature of an administrative disposition, such as the conclusion of the contract under the public law contract and the designation of the concessionaire, which is the competent authority for the implementation of the concession agreement, should be announced (Article 15 of the former Public-Private Partnerships Act). The cancellation of designation of the concessionaire may be made within the new public-private partnership system.

B) However, while a public-private partnership does not have any provision on recognizing the right to cancel the concession agreement under the bankruptcy of the concessionaire while there is no provision on recognizing the right to cancel the concession agreement. However, under Articles 58(1) and 53(1)3 of the concession agreement of this case, only the competent authority may cancel the concession agreement of this case and take necessary measures, such as cancellation of the concessionaire’s designation or cancellation of the management and operation right, by notifying the concessionaire in writing, if the concessionaire is declared bankrupt by a final judgment of the court. The concessionaire cannot cancel the concession of this case except for the reasons under Article 58(2) and (3) of the concession agreement of this case. Article 58(2) and (3) of the concession agreement of this case does not include the causes for cancellation of the concessionaire’s bankruptcy. In addition, even if the concessionaire is able to cancel the concession agreement by falling under Article 58(2) and (3) of the concession agreement of this case, designation of the concessionaire’s rights and obligations from the competent authority can be cancelled (see Article 59(1) of the concession agreement of this case).

Therefore, the termination of the instant concession agreement under the Private Investment Act is an act accompanied by the cancellation of a designation of a concessionaire, and the fact that the trustee in bankruptcy of the instant concession agreement can unilaterally terminate the instant case under the provisions of Article 335(1) of the Debtor Rehabilitation Act reaches the conclusion that, despite the existence of a cause attributable only to himself/herself, the Defendant may be forced to cancel the designation of a concessionaire. This is not only a method of termination of infrastructure projects anticipated by the Private Investment Act, but also a method of making the administrative agency’s authority to dispose of the instant concession. As such, the first priority should be given to determine whether to allow the termination of the instant concession agreement.

2) The Majority Opinion, on the ground that the instant concession agreement was not fulfilled by both parties, is established on the ground that ① the legal relationship between the Defendant and the Defendant at the time of the bankruptcy of the instant case, including the transfer of the ownership of facilities and the establishment of the management and operation right, is established because the concessionaire was granted the management and operation right, which is a real right, to recover from the competent authority through the collection of parking fees and the profit-making business of incidental facilities during the operation period, so that the concessionaire can cover the construction costs of the facilities. Therefore, not the legal relationship with each other. ② The Defendant’s obligation stipulated in a series of procedures under the Private Investment Act is merely a duty to cooperate in changing parking fees, etc., which is established, implemented, continued to operate the instant underground parking lot, etc., and there is no legal and economic relationship between the obligation of the Dadex to cooperate in changing the parking fees, etc., and ③ the Defendant has already established the management and operation right before the bankruptcy of the instant case, and thus, the Defendant has a mutual equal payment relationship with each other.

Such circumstances are not due to the fact that the instant concession agreement was not in a state of non-performance by both parties, but are revealed due to the characteristics of the contract under public law. The Majority Opinion merely borrowed such circumstance as the grounds for denying the status of non-performance by both parties. Of these grounds, some of the above grounds of the Majority Opinion may cause serious harm to the public interest in comparison and balancing between the public interest and private interests, taking into account the causes attributable to both parties, the amount of payment upon termination, and the burden of the administrative body, etc., and may not be applied by applying Article 335(1) of the Debtor Rehabilitation Act to the instant concession agreement, which is

The Private Investment Act provides for a concessionaire’s reasonable capital recovery method to induce the inducement of private capital necessary for the expansion of infrastructure. In other words, the concessionaire may grant the concessionaire the right to manage and operate the infrastructure by using and making profits from the infrastructure for a certain period after the completion of construction of infrastructure and collecting the user fee from the user of the infrastructure (Article 26 of the former Public-Private Partnerships Act). Such management and operation right is deemed a real right and requires the application of the provisions concerning real estate in the Civil Act, and where it is intended to divide or merge such management and operation right, it shall be subject to prior approval of the competent authority (Article 27 of the former Public-Private Partnerships Act). This is a system that cannot be presented under a private law contract. In particular, allowing the trustee in bankruptcy to dispose of the management and operation right without the authorization of the competent authority

In addition, granting management and operation rights is reflected in the legislative intent of the Public-Private Partnerships Act in order to achieve a balance between public and private interests by ensuring that the concessionaire can recover invested capital over a long-term period of time and by securing the stable operation of the infrastructure of the concessionaire, while seeking the benefit of the user, and by providing the project implementer with means of capital-backed securitization. The granting of management and operation rights to make a lump-sum payment upon termination, which is the balance of redemption of invested private investment funds, due to low financial independence, is not consistent with the nature of the public-private partnership project, but is allowing the concessionaire to choose bankruptcy and recover the lump-sum payment in order to avoid loss cumulative loss if the concessionaire occurs in the operation of the infrastructure. This is contrary to the purport of the concession agreement, which was made through BTO. In other words, this would seriously distort the administrative purpose, thereby causing serious infringement on public interest. Therefore, Article 335(1) of the Debtor Rehabilitation Act shall not be applied mutatis mutandis to the instant concession agreement.

3) As to the separate opinions, only if there is a special provision that explicitly limits the application of Article 335(1) of the Debtor Rehabilitation Act (Article 335(3) and Article 340(4) of the Debtor Rehabilitation Act, or if there is a special provision under other Acts, such as the bankruptcy of the contractor (Article 674 of the Civil Act) or one bankruptcy of delegated relation (Article 690 of the Civil Act), the application of Article 335(1) of the Debtor Rehabilitation Act may be excluded or restricted. Thus, even under public law, the instant concession agreement cannot be deemed differently from the general private law contract, unless there is a special provision that excludes the application, such as a contract related to the defense force improvement project under the Defense Acquisition Program Act.

채무자회생법 제335조 제3항에서 파산관재인이 방위사업법 제3조 제1호에 정의된 방위력 개선사업 관련 계약을 해제·해지하려는 경우 방위사업청장과 협의하도록 규정하고 있기는 하다. 그러나 방위력 개선사업은 군수품 구매(방위사업법 제19조) 또는 국방연구개발사업(국방과학기술혁신 촉진법 제8조)의 방법으로 추진되는데(방위사업법 제17조 제3항), 이는 통상적인 매매계약과 용역계약의 성격을 가지고 있다. 특히 구매절차의 경우 구매계획 수립, 입찰공고, 시험평가, 적격심사 등에 의한 계약대상자 선정을 거쳐 구매계약을 체결하도록 규정하고 있어 「국가를 당사자로 하는 계약에 관한 법률」이나 「지방자치단체를 당사자로 하는 계약에 관한 법률」의 계약체결 관련 규정과 유사한데(방위사업법 시행령 제25조의2, 제25조의3), 대법원 판례는 「국가를 당사자로 하는 계약에 관한 법률」에 따라 체결된 공공계약은 사법상의 계약으로 보고 있기도 하다(대법원 2001. 12. 11. 선고 2001다33604 판결). 더군다나 민간투자법과 달리 방위사업법에는 따로 위 매매계약과 용역계약의 처분성을 추단할만한 규정을 두고 있지 아니하다. 따라서 채무자회생법 제335조 제3항이 존재한다고 하여 방위력 개선사업 관련 계약이 공법상 계약이고, 그 이외의 공법상 계약은 무조건 채무자회생법 제335조 제1항의 적용을 받는다는 것을 의미한다고 볼 수는 없다. 또한 채무자회생법 제335조 제3항의 문언을 보면, 파산관재인이 해지권을 행사하고자 하는 경우 방위사업청장과 협의하여야 한다는 것에 그쳐 이로 인하여 파산관재인의 해지권이 박탈되는 것도 아니다. 따라서 채무자회생법에 특별 규정이 없거나 민간투자법에 채무자회생법의 적용을 배제하는 조항이 없다는 이유만으로 이 사건 실시협약이 논리 필연적으로 채무자회생법 제335조 제1항의 적용대상이 되는 것도 아니다.

Furthermore, Article 335(3) of the Debtor Rehabilitation Act provides for prior consultation in order for the Supreme Court to cancel or terminate a contract based on the public interest, even though it is a contract under private law. Since a contract under public law ought to take into account the public interest rather than a contract under private law, even if there is no special provision in the area of the Debtor Rehabilitation Act, it is necessary to fill the legal blank state concerning public law relations through statutory interpretation. In addition, the above provision may provide the grounds that the scope of application of the legal provision may vary in light of the public interest in the Debtor Rehabilitation Act, and it is difficult to view that there is no such special provision that each of the general contracts under public law ought to be equally

(d) Method of dispute under the concession agreement; and

In principle, a lawsuit concerning contracts under public law, such as the instant concession agreement, should be governed by a party lawsuit as stipulated in Article 3 subparag. 2 of the Administrative Litigation Act. Thus, the instant lawsuit constitutes a case where the case to be filed as a party lawsuit under the Administrative Litigation Act is wrong as a civil lawsuit. The Supreme Court also recognized that the Korea Land and Housing Corporation entered into an agreement with the superintendent of education of Seoul Special Metropolitan City and the superintendent of education under Article 4-2 of the former School Sites Act and entered into a lawsuit seeking capital costs pursuant to the agreement, and the said agreement is an act of public law, which is constituted with the agreement between equal parties for the purpose of causing public law effects, and thus, the said agreement is deemed a contract under public law, and barring special circumstances, a lawsuit claiming or claiming performance against the other party is a dispute concerning legal relations under public law (see Supreme Court Decision 2019Da277133, Feb. 4, 2021).

However, if a party suit excluded the application of special provisions prescribed by the Administrative Litigation Act in light of the special nature of the administrative litigation, there is no big difference from the civil litigation in the psychological process. Thus, if the court below did not violate exclusive jurisdiction, it shall not be deemed unlawful unless the court below handles the case as a civil lawsuit and affected the conclusion by excluding the case from the case that affected the conclusion. Since the Daejeon District Court Panel Division of the Daejeon District Court, which is the first instance court, has jurisdiction over the case of the lawsuit of this case at the same time as a party suit under the Administrative Litigation Act, it does not violate exclusive jurisdiction (see Supreme Court Order 2014Ma1072, Oct. 14, 2014). In addition, in the case of this case, the court, including Daejeon, etc., which was the court below, should have deliberated in accordance with the procedures of the administrative litigation of this case, but it cannot be seen that the facts were confirmed without applying the provisions of the Administrative Litigation Act, such as ex officio examination, and it did not constitute a ground for reversal of the judgment below.

(e) Conclusion;

From the perspective of the public law, the history of being separated into independent laws and developed and formed in the 18 to 19th century is a short academic field. There are many fields to be developed, and in this respect, it may be called an original image. The recent Framework Act on Administrative Law enacted is more encouraging than one step to build the originality of the public law. The discovery of laws living in the process of searching for the original forests of the public law is important. In this case, the precedent of the court will play a role of leading new legislation by fill the gap of positive laws.

Article 335(1) of the Debtor Rehabilitation and Bankruptcy Act shall not apply to the instant concession agreement, since the recognition of the right to unilateral rescission or termination by the trustee in bankruptcy, as a public contract based on the Public-Private Partnerships Act, is seriously detrimental to the public interest, in light of its specificity, the relevant provisions of the Public-Private Partnerships Act, and the comparison and balancing between the public interest and private interest, etc. However, in cases where the concessionaire intends to dispose of the management and operation right, it may be allowed to terminate the right by the trustee in bankruptcy if prior approval by the competent authority is obtained or the refusal of approval by the competent authority is revoked due to the illegality of the denial of approval by the competent authority, however, there is room for allowing the termination of the right by the trustee in bankruptcy. Ultimately, the argument in the grounds of appeal cannot be accepted.

The Framework Act on Administration explicitly provides contracts under public law, and explicitly provides various provisions on public interest (Articles 4, 10, 12, 18, 19, and 30). While the separate opinion states that there is no positive law provision, there is a limit in that there is no positive law provision, it is expected that discussions on contracts under public law have been actively discussed with the instant case, and that legislative devices will be installed to prevent significant infringement on public interest in relation to the application of the provisions, such as the Debtor Rehabilitation Act.

For the same reason, the conclusion that the final appeal should be dismissed is consistent with the Majority Opinion, but it is so stated in the Concurring Opinion.

8. Dissenting Opinion by Justice Kim Jae-hyung, Justice Park Jung-hwa, and Justice Lee Dong-gu

A. Summary of the Dissenting Opinion

After concluding a concession agreement with the competent authority as a private investment project, the concessionaire completed the construction of the underground parking lot facility and transferred ownership to the competent authority for a long time (in this case, it is unclear whether 19 years or 30 years or more) and went bankrupt while operating the facility.

In this case, whether the trustee in bankruptcy of the concessionaire is entitled to terminate the concession agreement? In other words, whether the concession agreement constitutes "a bilateral contract not implemented by both parties" under Article 335 (1) of the Debtor Rehabilitation Act and the trustee in bankruptcy of the concessionaire may terminate under this Article? This is a matter of whether the concession agreement is binding on the concessionaire before the termination by the competent authority, or whether it is possible to liquidate assets beyond the binding force of the concession agreement. This is the key issue of this case.

The Majority Opinion states that the instant concession agreement does not constitute an executory bilateral contract at the time of bankruptcy, and thus, cannot be terminated by the trustee in bankruptcy. The Concurring Opinion states that Article 335(1) of the Debtor Rehabilitation Act may apply mutatis mutandis on the ground that the instant concession agreement is a contract under public law. However, such an attitude is unreasonable.

The legal doctrine of bilateral contract, which is not implemented by both parties, is a general rule of bilateral contract, which is formulated to provide a trustee in bankruptcy with a right to choose to the trustee in bankruptcy and to reasonably protect the other party. It is apparent that the instant concession agreement is a contract in light of the content of the current law cited by the Act prior to the amendment, which is the same purport as the Act prior to the amendment, and the form and content of the agreement. Inasmuch as the contractual agreement has the unique nature of bilateral contract in that the duty of the competent authority to assign ownership to the competent authority upon completion of infrastructure facilities and to operate the concessionaire and to grant the concessionaire the right to manage and operate the infrastructure facilities and the concessionaire the right to manage and operate the infrastructure facilities, the legal doctrine of bilateral executory bilateral contract shall also apply to the instant bilateral contract. At the time of bankruptcy, the obligation of the concessionaire to maintain and manage and operate parking lots and the competent authority to cooperate with the concessionaire in adjusting parking fees, etc., as a debt under the instant concession agreement.

The foregoing obligation cannot be deemed as merely an incidental obligation. Article 335(1) of the Debtor Rehabilitation Act does not exclude options regarding the performance or rescission or termination of a contract on the ground that it is an incidental obligation. This is likewise true in all the provisions of the Civil Act recognizing the rescission or termination of a contract on the grounds of bankruptcy. As a result, a concession agreement under the Public-Private Partnerships Act is to establish and operate infrastructure, and if an obligation necessary to operate infrastructure is not fulfilled, the main part of the contract ought to be deemed not to have been fulfilled. Nevertheless, denying the trustee’s right to terminate a contract on the ground that the non-performance is an incidental obligation is contrary to the legislative purpose of the Public-Private Partnerships Act and the language and text of Article 335(1) of the Debtor Rehabilitation Act, as well as

A contract in public law is concluded on the premise that the provisions concerning contracts or legal acts under the Civil Act apply to general matters as a contract concerning legal relations in public law. It is not consistent with the legal system of our country, but also inconsistent with the current legal doctrine of precedents. Considering that Article 335(1) of the Debtor Rehabilitation Act, which is the basic provision concerning the treatment of bilateral contracts upon declaration of bankruptcy, does not apply to contracts in public law, causes a significant gap in legislation.

In this case, it is legitimate to terminate the instant concession agreement that falls under both parties’ executory bilateral contract with the permission of the bankruptcy court.

Then, examining the purport of bilateral contract under Article 335(1) of the Debtor Rehabilitation Act (B) and the requirements for its application (c) and whether the trustee in bankruptcy can terminate the instant executory contract under this Article (d) and whether the Civil Act or the Debtor Rehabilitation Act concerning private contracts under public law applies (e) and whether the trustee in bankruptcy conflict with the right to terminate the contract owned by the defendant or may cause moral hazard (f) and then suggest the conclusion of the instant case (g).

(b) The purport of the bilateral contract not performed by both parties, which is the general rule of the bilateral contract;

Articles 335(1) and 337 of the Debtor Rehabilitation Act are common provisions of bilateral contracts, which are stipulated in the purport of protecting the other party in response to his/her choice, in cases where one of the parties to a bilateral contract, with legal and economic relations, serves as a collateral in principle as a matter of principle, becomes bankrupt when both parties have not yet completed the performance of the bilateral contract, by recognizing the trustee in bankruptcy the right to rescind or terminate the contract, or by allowing the trustee in bankruptcy to choose to claim the performance of the other party’s obligation, and at the same time protecting the other party in response to his/her choice (see, e.g., Supreme Court Decision 2001Da24174, 24181, Oct.

The insolvency procedure has characteristics as a collective enforcement procedure to coordinate all interests of all interested parties, including all creditors. Even if there is no other party’s default, the contractual relationship is terminated upon the trustee’s choice, and thus the other party’s rights may be infringed. However, the provisions on bilateral contracts not fulfilled by both parties grant the right of choice to the trustee in bankruptcy for the purpose of more efficient and prompt progress of the bankruptcy procedure, which is a significant legislative decision that forms the basis of the bankruptcy procedure.

The provisions terminating the validity of bilateral contract on the grounds of bankruptcy are not limited to the Debtor Rehabilitation Act. The Civil Act, a general law on a contract, recognizes the rescission or termination of a contract on the grounds of bankruptcy or terminates its validity. The provisions are rarely without exception, setting bankruptcy as the grounds for termination of the contract or granting the right to terminate the contract to both the trustee in bankruptcy and the other party.

If an agent goes bankrupt, the power of representation expires (Article 127 subparag. 2 of the Civil Act). If one of the parties becomes bankrupt before the lender delivers the object to the borrower (Article 599 of the Civil Act); if the borrower is declared bankrupt at the loan for use, the lender may terminate the contract (Article 614 of the Civil Act). If the lessee is declared bankrupt, the lessor or the trustee in bankruptcy may notify the lessee of the termination of the contract pursuant to Article 635 (Article 637(1) of the Civil Act even if the term of lease is agreed upon (Article 637(1) of the Civil Act). If the employer is declared bankrupt, the contractor or the trustee in bankruptcy may terminate the contract even if the employment period is agreed upon (Article 663(1) of the Civil Act). If one of the parties to the delegation contract becomes bankrupt (Article 674(1) of the Civil Act), the delegation contract shall be terminated (Article 690 of the Civil Act).

Article 335 of the Debtor Rehabilitation Act, rather than Article 335 of the same Act, may be terminated automatically or terminated by the intention of the trustee in bankruptcy pursuant to individual provisions. This is likewise applicable to the case where the trustee in bankruptcy selects the rescission or termination of a bilateral contract pursuant to Article 335 of the Debtor Rehabilitation Act. However, in the case of cancellation or termination pursuant to the Debtor Rehabilitation Act, the other party’s rights are protected as estate claims, and thus, the other party is in a favorable position than when the other party’s rights are rescinded or terminated pursuant to the Civil Act. The debtor who is declared bankrupt is ordinarily unable to continue his/her business. Accordingly, the termination of the contractual relationship with respect to the debtor in the bankruptcy procedure, which is a liquidation-type bankruptcy procedure,

Where a contract is terminated or terminated under Article 335 of the Debtor Rehabilitation Act, the obligee shall be treated favorably in bankruptcy proceedings than when the contract is terminated or terminated, irrespective of this provision. Therefore, the attitude to strictly apply this provision may be understood to have been in favor of a specific obligee from the perspective of equity with other creditors or the equitable distribution of dividends in the debtor’s bankruptcy foundation, etc., and to protect the bankruptcy foundation through this, thereby seeking the benefit of the total obligee. In fact, most cases where the application of this provision was disputed are not the case where the bankruptcy administrator claims that the bilateral contract is non-performance of both parties, but the obligee asserts that the bilateral contract is non-performance of both parties.

다수의견은 입법연혁으로 보아 채무자회생법이 쌍방미이행 쌍무계약의 인정을 엄격히 하는 방향으로 변화하였고, 판례도 채무자회생법 제335조를 엄격하게 적용하였다고 본다. 그러나 이것은 타당하지 않다. 채무자회생법 제340조 제4항에서 대항력 있는 임대차계약에 채무자회생법 제335조 제1항의 적용을 제외한 것은 임차권에 대항력을 부여한 주택임대차보호법 등의 취지에 따른 것으로, 쌍방미이행 쌍무계약의 범위를 엄격히 할 것인지 여부와 무관하다. 파산관재인이 방위력 개선사업 관련 계약을 해제·해지하고자 하는 경우에 방위사업청장과 '협의'하도록 개정한 것을 두고 채무자회생법이 쌍방미이행 쌍무계약의 인정을 엄격히 하는 방향으로 변화하였다고 볼 수도 없다. 이 규정은 위와 같은 계약이 쌍무계약에 해당함을 전제로 해제·해지를 할 때 '협의'라는 절차적 요건을 부가한 것이기 때문이다. 더욱이 민법에 존재하는 쌍방미이행 쌍무계약의 특칙들은 대개 해당 계약이 당연 종료되거나 파산관재인 의사에 따라 종료될 수 있음을 정하고 있을 뿐 아니라, 민법 제정 무렵부터 존재하던 것들로서 입법의 변화나 방향과는 상관없다. 채권자가 쌍방미이행 쌍무계약을 주장한 사안에 관하여 판단한 몇 개의 판결들을 가지고 판례가 쌍방미이행 쌍무계약을 엄격하게 인정하여 왔다고 평가할 수도 없다.

(c) The requirements for the application of bilateral contracts not performed by both parties;

1) Bilateral contract

The Civil Code has the provisions concerning bilateral contract (Article 536 to 538 of the Civil Code), and the bilateral contract under Article 335 of the Debtor Rehabilitation Act is the same as the concept of bilateral contract under the Civil Code.

Bilateral contract means a contract with the content that both parties are to bear, in conflict, obligations which are dependent upon the objective of both parties. Here, "the objective dependence relationship" means a functional pair of relationship that the parties are to bear the obligations corresponding to the other party in order to cause the other party's obligations.

The Supreme Court has made a judgment that regards the executory contract under Article 335(1) of the Debtor Rehabilitation Act as a contract under which both parties are liable for an obligation on an equal price basis and puts emphasis on the quid pro quo (see, e.g., Supreme Court Decisions 2005Da38263, Sept. 6, 2007; 2013Da204140, 204157, Sept. 4, 2014). However, emphasizing the quid pro quo in the executory contract is recognized as having objectively a quid pro quo relationship, and thus, can be contrary to the original meaning of the executory contract.

2) Non-performance of the contract - In particular, whether the concept of ‘non-performance' is necessary to determine non-performance of the contract.

In order to constitute an executory bilateral contract, both parties must be in the state of non-performance of their obligations. In this case, not only the performance of all obligations but also the performance of some obligations, in principle, constitutes an executory contract.

Article 335(1) of the Debtor Rehabilitation and Bankruptcy Act does not provide for exceptions to the exclusion of the trustee in bankruptcy regarding the performance, rescission, and termination of a contract for an incidental obligation. Bankruptcy proceedings aim at prompt realization of the debtor’s bankruptcy estate and the equitable distribution of the creditors. If the debtor in bankruptcy is bound by such contract even though the debtor is unable to perform his/her contractual obligation, and thus, requires the other party to comply with the other party’s claim, it would hinder the progress of bankruptcy proceedings. Therefore, unless the portion of nonperformance is so minor that it does not interfere with the progress of bankruptcy proceedings, the trustee in bankruptcy regarding the performance, rescission, and termination of the contract shall not be deprived of the trustee in bankruptcy

Of the Supreme Court decisions, the Supreme Court held that when the principle of rescission on the ground of nonperformance under the Civil Act (see, e.g., Supreme Court Decision 2005Da53705, 53712, Nov. 25, 2005) is applied to bankruptcy proceedings and the incidental obligation is not fulfilled under Article 335(1) of the Debtor Rehabilitation Act (see, e.g., Supreme Court Decision 92Da56865, Jan. 11, 1994). However, the right to rescission or termination under Article 335(1) of the Debtor Rehabilitation Act is recognized to liquidate bilateral contract regardless of default, and it differs from the underlying law and legislative purpose of the Civil Act. In addition, there is a significant criticism that the Civil Act rescission also uses the concept of "indic obligation" (see, e.g., Supreme Court Decision 2005Da53705, 53712, Nov. 25, 2005).

Bilateral contract provisions under Article 335(1) of the Debtor Rehabilitation Act are closely related to the Civil Act that recognizes the rescission or termination of a contract on the grounds of bankruptcy, not the contractual termination provisions based on nonperformance. Such provisions do not preclude the rescission or termination of a contract on the grounds that the nonperformance of a contractual obligation is an incidental obligation.

The term "incidental obligation" or "incidental obligation" is a term not appearing in the Civil Code or the Debtor Rehabilitation and Bankruptcy Act, and it has started to be used in the Supreme Court's decision. Even according to the above precedents, the important meaning is not the term "dive" itself, but the substantive meaning that the Supreme Court's decision intended to express as such term.

The exclusion of the application of Article 335(1) of the Debtor Rehabilitation Act from the application of Article 335(1) of the same Act on the ground that an executory obligation in a bilateral contract constitutes “indemable obligation” cannot be excluded from the application of Article 335(1) of the same Act on the ground that the said obligation constitutes “indemable obligation” by virtue of the literal interpretation of Article 335(1) of the same Act and the legislative purpose of the Debtor Rehabilitation Act. In view of the characteristics of bilateral contract (the objective dependence between both parties) and the characteristics of bankruptcy proceedings (the equitable adjustment between the liquidation of the debtor’s property and the total creditor’s common

Even if it is based on the logic that both parties can exclude the right to cancel and terminate bilateral contracts on the grounds that the non-performance part is an incidental obligation, the following must be taken into account. Whether the content and characteristics of the contractual obligation owed by the parties under the contractual obligation is the main or incidental matter is not uniformly determined, and the determination is based on a comprehensive consideration of the content and characteristics of the contractual obligation, objective and external expression of the intent of the parties, the details

In principle, the principal obligation is the essential content and purpose of the contract, and the obligation to supplement it or to be additionally borne in relation to various circumstances of the contract is an incidental obligation. In particular, when determining the cancellation or termination of the contract, if it does not interfere with the achievement of the purpose of the contract to the extent that the contract should be terminated, it can be said that it is an additional obligation.

Therefore, even if a party’s breach of duty or nonperformance exists, and the other party does not cancel or terminate a contract, if the original objective of the contract is not impeded by the parties, it constitutes an incidental obligation. The non-performance portion should not be readily concluded as an incidental obligation just because it is merely a part of the contractual obligation compared to the overall obligation borne by the parties to the contract or is an insignificant part.

In the end, the application of this article should be determined depending on whether both parties are in a relationship where they are liable for obligations corresponding to each other in order to cause the other party's obligations, and both parties have not fulfilled all or part of their obligations.

D. Whether Article 335(1) of the Debtor Rehabilitation Act applies to the instant concession agreement

1) The Bilateral nature of the instant concession agreement

Whether the instant concession agreement has a purpose mutual respect relationship, which is the nature of bilateral contract, is examined.

Article 2 (7) of the Private Investment Act provides that the concession agreement is a contract between the competent authority and a person who intends to implement a private investment project by stipulating that the concession agreement is a contract by stipulating that it is a contract between the competent authority and the person who intends to implement the private investment project under this Act. In that it causes a certain legal effect according to the unity of intentions between the parties, there is no reason to regard the concession agreement under

In BTO (referring to the right to manage and operate infrastructure at the same time as the completion of the construction of infrastructure belongs to the State and a local government) a concessionaire is obligated to complete the construction of infrastructure in accordance with the concession agreement to revert ownership to the State and a local government, and the competent authority shall grant the concessionaire the right to manage and operate the infrastructure. The concessionaire is obligated to grant the right to manage and operate the infrastructure from the competent authority on the premise that the ownership of the infrastructure completed is attributed to the State, etc., and the competent authority bears the above obligation on the premise that the concessionaire is granted the right to manage and operate the infrastructure. The Enforcement Decree of the Private Investment Act also prescribes that the concessionaire may use and benefit from the infrastructure only within the scope of the total project cost specified in the concession agreement (Article 25(1) of the Private Investment Act, Article 22(1) of the Enforcement Decree of the Private Investment Act). In addition, the concessionaire bears the same obligation as the concessionaire bears the burden of free use of the total project cost and the period for which the concessionaire collects the user fee (Article 23(1) of the Enforcement Decree of the Private Investment Act).

In light of the purpose and content of the concession agreement, the rights and obligations of the competent authority and the concessionaire shall be repaid for the entire duration of the concession agreement, including the construction period and the operating period. Therefore, the obligations of the parties during the duration of the concession agreement shall be deemed to have been established, implemented, and existing.

Furthermore, even considering the characteristics of the instant concession agreement in light of the public law, the instant concession agreement, as a matter of principle, has the nature as a contract and cannot be deemed to have the nature of unilateral disposition leading the competent authority in the instant concession agreement. Inasmuch as the parties have divided the duration of the concession agreement into the construction period and the operation period, determination of the relationship between the competent authority and the concessionaire’s obligations, the entire duration should be set based on the overall duration. In other words, determining the overall duration based on the divided ownership of each period or phase is unreasonable in light of the content of the concession agreement and the intent of the parties concerned. The instant concession agreement ought to be deemed as a single bilateral contract by aggregating the construction period and the operation period.

The reason why the concessionaire has the right to terminate the concession agreement of this case is that if the concessionaire goes bankrupt, the trustee in bankruptcy of the concessionaire can terminate the contract according to the provisions on the executory bilateral contract.

2) Whether the instant concession agreement was not fulfilled by both parties

The majority opinion held that, at the time of the bankruptcy of this case, Lidex and the defendant's obligation are not in a quid pro quo relationship between the project operator, and both of the above obligations are not in a quid pro quo relationship, and the defendant completed the performance of obligations by granting management and operation rights. However, this is unreasonable

A) Whether the concession agreement of this case cannot be terminated because the project implementer and the Defendant’s obligation constitute “dive obligation” at the stage of management and operation

We examine whether both obligations borne by both parties at the stage of the management and operation of the instant concession agreement are merely an incidental obligation.

The main obligations of both parties remaining at the time of bankruptcy among the contents of the instant concession agreement are as follows. The concessionaire shall maintain, manage, and operate the facilities devolving upon the period specified in the instant concession agreement (Article 8), and submit to the Defendant a maintenance and management plan, operation plan, etc. during the operation period (Articles 42 and 43). The Defendant, who is the competent authority, shall allow the project implementer to gratuitously use and benefit from the site and business facilities during the operation period (Articles 10(2) and 50(2)), shall cooperate with the project implementer in changing the total project cost or adjusting parking fees in the event of the occurrence of the causes for non-afmeral power (Articles 13 and 47(4)), and at the request of the project implementer, parking control shall be conducted without delay (Article 49(3)).

The obligation of the concessionaire, while maintaining and managing the instant underground parking lots, etc. during the construction period, falls under the essential contents of the concession agreement as an important factor that determines the establishment of the concession agreement at the time of the conclusion of the concession agreement. The competent authority also guarantees the concessionaire’s use and profit-making through the establishment of management and operation rights and allows the users of the instant underground parking lots, etc. to collect user fees from the users of the instant underground parking lots, etc. by the expiration date of the operation period stipulated in the concession agreement, thereby providing the concessionaire’s inputs during the construction period, and performing the compensatory benefits for the acquisition of ownership of the instant underground parking lots, etc., and cannot

The purpose of this Act is to contribute to the development of the national economy by promoting the investment of the private sector in infrastructure, thereby contributing to the development of the national economy (Article 1). Social infrastructure projects refer to projects concerning the establishment, extension, or operation of infrastructure (Article 2 Subparag. 3). The purpose of the Private Investment Act is not only to build, expand, or operate infrastructure, but also to build, operate the infrastructure. It is against the legislative purpose and contents of the Private Investment Act to regard the duty of operation as an incidental obligation upon the construction of infrastructure as an incidental obligation.

Furthermore, a lease agreement with a legal structure similar to the management and operation stage of infrastructure reaches the same conclusion. A lessor is granted a lessee a right to use and benefit from infrastructure, and the lessor’s performance is not completed as it delivers an object, and the lessee’s obligation to use and benefit from the object continues within the contract period. The lessee’s obligation to pay the leased amount continues within the contract period. Therefore, if the lessee becomes bankrupt during the contract period, the lessee’s trustee in bankruptcy may terminate the lease agreement on the ground that the lessee is an executory contract (if the lessor goes bankrupt, it is distinguishable from the exclusion of the application of Article 335 of the Debtor Rehabilitation Act). In such case, the lessee’s trustee in bankruptcy may rescind or terminate the lease agreement on the premise that the lessor is an executory contract if the lessor goes bankrupt (see Article 340(4) of the Debtor Rehabilitation Act).

It is reasonable for the competent authority to grant the project implementer the right to manage and operate and guarantee that the project implementer may enjoy profits from the use of the underground parking lot, etc. of this case during the period of construction to the project implementer, which has the nature of benefit in return for the transfer of ownership to the competent authority and the efficient provision of public services by constructing

C. The use and profit-making of the instant underground parking lot during the operation period is also a right, and at the same time, has the character as a duty. The Defendant, the competent authority under the instant concession agreement, bears an administrative support duty to conduct parking regulation if requested by the Dadex. This cannot be deemed as an incidental duty given that the contractual obligation explicitly compelling the performance under the concession agreement, which is a contract, is a legal obligation that is a party, and that is a small and medium-term obligation,

Inasmuch as such duty does not constitute an executory contract on the ground that it is an incidental duty, it is unreasonable to view that a lessor may cancel or terminate a lease agreement when a lessor delivers an object to a lessee, but fails to perform his/her duty to use or make profits from the object under the foregoing lease agreement. In a case where a lessor’s duty to actively cooperate in reclamation works of public waters was not yet fulfilled, Supreme Court Decision 92Da56865 Decided an incidental obligation in a bilateral contract, the Supreme Court held that the lessor’s duty to actively cooperate in reclamation works of public waters is not an executory contract on the ground that the lessor did not perform such duty. However, in a lease agreement, the lessor’s duty to use or make profits from the object or the duty to enable the project implementer to use or make profits from the facility during the operating period constitutes a major part of the contract. The denial of the termination right by the trustee in bankruptcy is recognized as an incidental obligation under a concession agreement under the Private Investment Act with the State or a local government.

The Majority Opinion argues that the Defendant’s performance of obligations, such as granting subsidies, has not been completed. However, in a private investment project, whether to provide support by the State or a local government during the use and profit-making of facilities after the completion of the project, and the scale thereof are determined in consideration of the specific circumstances of individual projects, such as the characteristics and feasibility of facilities. As such, it does not result in a meaningful difference in determining a mutual legal relationship that includes administrative support or financial support. From the perspective of legal obligation, there is no reason to separately grasp the duty of the competent authority to provide financial support and administrative support from the perspective of legal obligation.

As can be seen, the competent authority’s obligation to cooperate in the use and profit-making of the concessionaire constitutes a principal obligation to the extent that it is deemed that the concessionaire would not conclude the concession agreement as the objective of the concession agreement is not achieved because it is unnecessary to achieve the objectives of the concession agreement, and if not, it does not perform the concession agreement. Furthermore, even if only the main obligation of both parties remaining in the concession agreement of this case, it can be seen that the continuous contract still remains for a long time

B) Nature as a continuous contract under the instant concession agreement

A continuous contract is a bilateral contract under which a supplier is obligated to continuously provide a contractual party with a performance of one-way and the other party is obligated to pay the consideration for each performance, such as electricity, gas, and water supply. Article 544-2(2) of the Civil Code Amendment Draft by the Ministry of Justice in 2013 provides that a contract may be terminated when the existence of the contract cannot be expected due to any significant cause other than default. There is no doubt that the legal doctrine on bilateral contract is applied to a continuous contract. The same holds true in cases where a contract has the nature of a continuous contract under public law. The German Administrative Procedures Act explicitly provides that the contractual party may terminate the contract if it is unlikely to accept the original provision of the contract after the conclusion of the contract and it is impossible to adjust the contract (Article 60(1)).

Inasmuch as a concessionaire and the competent authority have agreed on the long-term management and operation period of the instant concession agreement, and on the construction of facilities and the management and operation of the facilities thereafter, the Majority Opinion has the nature of continuous contract. The main purpose of the instant concession agreement is different. However, if a concessionaire, a for-profit enterprise, is not guaranteed the right to manage and operate the relevant facilities, he/she does not complete the construction of facilities at his/her own expense or transfer the ownership of the completed facilities to the competent authority without compensation. In light of the concept of private investment projects that expand and operate infrastructure upon investment by the private sector, the instant concession agreement ought to be deemed a single continuous contract in which the implementation stage and the management and operation stage are closely related thereto.

During the contract period due to the bankruptcy of the concessionaire, the obligation of the Defendant to use and make profits from the instant underground parking lots, etc. and the absence of various cooperation therefrom (the obligation to cooperate for adjustment, such as parking fees, operating expenses, management period, etc.) and the concessionaire’s obligation to submit the instant underground parking lots, etc. to the competent authority on a regular basis. Generally, in the event of a bankruptcy of the project operator, continuing its business may not be expected if the project operator becomes bankrupt. Furthermore, in the event that the pertinent project is a public-interest private investment project, such as the instant case, not for profit-making business, it is practically impossible to compel the bankruptcy obligor, which is verified to have no capacity to implement the instant concession agreement, to maintain the status of the project operator, and it is not desirable from the perspective of public welfare.

In the instant concession agreement, if the concessionaire goes bankrupt, the Defendant is entitled to terminate the instant concession agreement. This is premised on the premise that the concessionaire becomes unable to perform his/her duty to operate facilities when the concessionaire goes bankrupt during the operating period, and thus constitutes a serious cause for termination of the contract. In light of the terms of the right to termination of the agreement, bankruptcy of the concessionaire during the operating period constitutes a cause for which it is difficult to achieve business objectives and the Defendant as well as the concessionaire is bound by the instant concession agreement.

Therefore, the bankruptcy of the project implementer is a serious reason to destroy the mutual trust relationship.

In particular, the duty to cooperate and the obligation to be borne by the Defendant under the instant concession agreement to the Defendant by the concessionaire is essential for the smooth management and operation of the instant underground parking lot, which is an infrastructure, and the obligation to continue for a long time during the management and operation period, and is not merely a single-time obligation, such as the duty to cooperate in the procedures for the registration of ownership transfer in real estate sale.

3) Whether the project implementer has the obligations and the Defendant’s obligations.

The instant concession agreement, as seen in the instant case, was concluded by combining the stages of the implementation of infrastructure projects (in the case of the instant concession agreement, the transfer and transport stages) and the stages of the management and operation of infrastructure facilities (in the case of the instant concession agreement, the original rate stages). It is clear that the instant concession agreement had been concluded between the two parties, and the Defendant. Moreover, since the HHT acquired the HH at the stage of the management and operation of the relevant facilities, it is apparent that the instant agreement had already been concluded by the Defendant, even after the completion of the construction of the facilities and the transfer of ownership, was completed, the Defendant was granted the status of the concessionaire in HHT by concluding the “Modification concession agreement, including all the above contents,” which is included in the stage of the implementation of the relevant facilities. If the Defendant intended to treat the implementation stage and the management and operation stage according to the progress stage, at least the HEXT should have entered into the instant concession agreement with the content that only the management and operation stage at the time of the transfer of the term. Accordingly, the instant concession agreement should not be reasonably construed.

If Liex and the Defendant entered into a separate contract containing only the management and operation phase, there is no difference between the contract and the transfer phase. Therefore, it is naturally anticipated that the Defendant already assumes the obligation to pay the construction cost equivalent thereto and that the trustee in bankruptcy claims the Defendant for the temporary payment of the construction cost in order to secure the bankruptcy estate. In other words, in the whole framework of the contract, there is no special doubt that the Defendant bears the obligation to pay the construction cost to the bankrupt foundation in the event of bankruptcy after the project operator completed the facility at his own expense and transferred the ownership thereof to the Defendant, who is the competent authority, in the event of bankruptcy. Rather, it is consistent with the principle of equity that the Defendant bears the construction cost.

4) The meaning of the establishment of management and operation rights as real rights

With respect to whether a concession agreement can be rescinded or terminated on the grounds of bankruptcy, if there are special provisions under the Civil Act and the Debtor Rehabilitation Act, the said provisions shall govern. However, under other circumstances, Article 335 of the Debtor Rehabilitation Act, which is the general provisions of bilateral contract, shall apply if the concession agreement has the nature of “Bilateral contract” and if both parties fail to perform, then Article 335 of the Debtor Rehabilitation Act, which is the general provisions of the bilateral contract. In other words, if the requirements for both parties’ performance under Article 335 of the Debtor Rehabilitation Act are satisfied as a bilateral contract, the trustee in bankruptcy may choose the performance, rescission, and termination of the contract pursuant to this Article, and the application of Article 335 of the Debtor Rehabilitation Act does not vary depending on whether the rights acquired by the debtor are real rights. Even if the concessionaire vests in the State, etc., and the competent authority granted the concessionaire the right to manage and operate revertible facilities, the concession agreement does not terminate. Thus, whether management and operation

The Majority Opinion is not a contractual obligation that arises from the establishment of management and operation rights which are real rights, rather than a contractual obligation that the Defendant bears separately in accordance with the concession agreement, but rather a contractual obligation that arises from the establishment of management and operation rights which are real rights. However, it is an example that the instant concession agreement provides various obligations that the Defendant bears to the public as the owner of the instant land. Even when considering the right to lease on a deposit basis, similar to the management and operation rights, the owner of the right to lease on a deposit basis and completing the registration of the establishment of the right to lease on a deposit basis cannot be said to bear any contractual obligation for the lessee on the ground that the lessor established the right to lease the right to preferential payment to the lessee in a housing lease or commercial building lease. Likewise, the lessor cannot be said to bear any contractual obligation for the Defendant on the ground that the lessor bears any contractual obligation for the maintenance and management of the parking lot, etc., as the owner, and that the Defendant bears any legal obligation for the Defendant on the parking lot, etc., as the owner of the instant land.

It is premised on the fact that the ownership of the infrastructure completed by the concessionaire’s own capital reverts to the State and local governments, and the maintenance and management of the infrastructure reverted to the State and local governments, by collecting user fees from the user of the infrastructure, can recover the invested capital and obtain profits from the reasonable profit rate determined by the concession agreement. Even though there was a reason for the adjustment of user fees, etc. during the management and operation period, the competent authority may not only make the recovery of invested capital impossible unless he cooperates in the adjustment of user fees, etc., but also hinder the appropriate maintenance and management of revertible facilities. Therefore, the competent authority may not be deemed to have granted the project implementer the right to manage and operate the project, and the said right is a real right, and the relevant obligation cannot be determined as an incidental obligation. The Defendant bears the duty to cooperate in the adjustment of user fees, etc. even after

Therefore, it is difficult to view that the concessionaire’s ownership of the infrastructure completed under the concession agreement vests in the State and local governments, and is granted by the competent authority the right to manage and operate the revertible facilities, thereby entirely fulfilling the obligation with equal consideration.

E. Whether the Civil Act and the Debtor Rehabilitation Act apply to contracts under public law

The Concurring Opinion states that Article 335 of the Debtor Rehabilitation Act is not likely to apply mutatis mutandis to the instant concession agreement in light of the special nature of the contract under public law. The Majority Opinion denies the application or analogical application of Article 335(1) of the Debtor Rehabilitation Act on the grounds that the ownership of infrastructure is reverted to the competent authority upon completion of construction of infrastructure and the duty of the competent authority to grant the concessionaire the right to manage and operate the infrastructure and to allow the concessionaire to operate it.

Although the Majority does not regard the instant concession agreement as a contract under public law, it may be viewed that the instant concession agreement was related to a legal relationship under public law in the course of reaching the said conclusion. Therefore, it is necessary to examine whether a contract on a legal relationship under public law, i.e., a contract under public law, the Civil Act and the Debtor Rehabilitation Act are applied.

1) The meaning of the contract under public law

A contract under public law is a contract on legal relations under public law (Article 27 of the Framework Act on Administration), and is established by the agreement between equal parties to regulate legal relations under public law. In that it is established by mutual agreement between equal parties, the subject is identical to a contract under private law, but the subject is distinguishable from a contract under private law in that it is a legal relationship under public law. There are many cases where specific provisions exist in individual laws regarding a contract under public law, but there are many cases where not, the contract is concluded on the premise that general provisions or legal principles concerning a contract apply.

A concession agreement under the Private Investment Act is, in principle, a contract that is concluded between the competent authority and a person who intends to implement a private investment project concerning the conditions, etc. for implementing the infrastructure project (Article 2 subparag. 7 of the Private Investment Act), which regulates legal relations in public law. The implementation of a concession agreement pursuant to the concession agreement is governed by the procedures and regulations prescribed by the Private Investment Act and relevant Acts, and the concessionaire is prohibited from performing any project other than the one recognized at the time of designation of the concessionaire. The disposal and operation rights of the competent authority are subject to prior approval of the competent authority or change of investors and there is a comprehensive supervisory order

2) Whether the provisions governing private contracts under public law apply to such contracts

Unlike the general public law relationship formed by administrative disposition, etc., a contract under the public law is used as a means to regulate legal relations in the civil law. In this context, an administrative agency that has selected the form of a contract ought to take responsibility accordingly. It is reasonable to regard a contract under the civil law as directly applying the provisions of a contract or legal act under the public law, unless otherwise specifically provided for in the individual law. Whether a contract directly applies to a contract under the civil law or a legal act under the public law, the Civil Act may apply mutatis mutandis to the case where there is no specific legal regulation in the public law relationship, and the discussion is different as to whether a contract under the public law is able to supplement the defects of the law. German Administrative Procedures Act, unless otherwise provided for in Articles 54 through 61, provides that other provisions of the public law are applied in advance and the provisions of the Civil Act are applied mutatis mutandis (Article 62 of the German Administrative Procedures Act). Accordingly, there is no provision corresponding thereto, a contract under the private law and a contract under the public law should not be applied to the conclusion and termination of a contract.

As long as an administrative agency selects the method of contract and causes the legal effect through the agreement between the parties concerned, it is natural that the general legal doctrine on the contract is applied. An administrative agency may utilize administrative disposition in a case where the public interest needs to be harmed by the application of the general legal doctrine on the contract. Article 27 of the Framework Act on Administrative Affairs provides that a contract in public law can be concluded within the scope of not violating the law, etc., but only the application of the legal doctrine on the contract which is disadvantageous to it should not be refused by selecting the form of "contract" under the premise that the administrative agency is a party on an equal basis within the authority granted by law

The Supreme Court has previously resolved various disputes concerning contracts under public law through legal principles on contracts or legal acts. In other words, the Supreme Court recognized the termination of contracts under public law by applying legal principles on continuous termination of contracts under public law for the purpose of establishing a labor relationship (Supreme Court Decisions 2002Du5948 Decided November 26, 2002; 2010Du4971 Decided August 19, 201). The Supreme Court, applying legal principles on the interruption of extinctive prescription to the Small and Medium Enterprise Information Promotion Agency(Supreme Court Decision 2018Du5635 Decided March 14, 2019, Supreme Court Decision 201Du1681 Decided April 27, 2017). The Court also determined that the provisions of the Civil Procedure Act on the reduction of the extinctive prescription period of subsidies upon the termination of the Convention on Assistance to the Informatization of Production Facilities(Supreme Court Decision 200Du16810 Decided March 27, 2019).

Unless the provisions governing private contracts governing individual contracts under public law or contracts under public law are applied, the legal relationship surrounding public contracts cannot be specifically regulated. Therefore, when determining the specific legal relationship of contracts under public law, the provisions concerning contracts under civil law, contract provisions under civil law, contract provisions under the Debtor Rehabilitation Act, etc. should also be examined.

3) Whether the Debtor Rehabilitation Act applies to public contract

A) The Debtor Rehabilitation Act directly regulates legal relations under public law.

The Debtor Rehabilitation Act explicitly provides for the application of the provisions to various legal relations having the nature of public law. Where a corporation is declared bankrupt, the court shall notify the competent authority of the declaration of bankruptcy (Article 314(1) of the Debtor Rehabilitation Act) when permission from an administrative authority is granted with respect to the establishment or the objective of the corporation (Article 314(1) of the same Act). Administrative litigation directly affecting the bankruptcy foundation, such as a lawsuit disputing the land expropriation pending in the court at the time of declaration of bankruptcy, a lawsuit seeking the cancellation of taxation, and a lawsuit seeking the cancellation of a penalty surcharge payment order by the Fair Trade Commission, shall be interrupted (see Article 8(2) of the Administrative Litigation Act, Article 239 of the Civil Procedure Act, Article 347(1) of the Debtor Rehabilitation Act, Article 347(1) of the Debtor Rehabilitation Act, and Article 57-2 subparag. 1 of the Local Public Enterprises Act, Article 517 subparag. 1, 227 subparag. 5, and Article 71-2(1)3) of the Commercial Act, explicitly recognized the bankruptcy capacity of the Seoul Local Public Corporation.

In addition, the Debtor Rehabilitation Act provides for the provisions governing monetary claims held by the State or local governments against the debtor in bankruptcy. Any claims that may be collected pursuant to the National Tax Collection Act or the Local Tax Collection Act (including claims that may be collected according to the example of collecting the national tax and their collection priority takes precedence over the general bankruptcy claims; excluding subordinate bankruptcy claims provided for in Article 446 of the Debtor Rehabilitation Act) are deemed estate claims (Article 473 Subparag. 2 of the Debtor Rehabilitation Act). Any claims that may be collected pursuant to the example of national taxes, local taxes, or national tax collection, such as national taxes and local taxes, shall be deemed bankruptcy claims, but any claims that may be collected pursuant to the example of the National Tax Collection Act and any special policy consideration that securing revenues directly connected with the budget of the State, local governments, or public organizations, among claims that may be collected according to the example of collecting the national tax, are treated as general bankruptcy claims (see, e.g., Supreme Court Decision 201Da473427, Mar. 29, 2018).

In the past, Article 335 of the Debtor Rehabilitation Act has been applied to cases where a contract under public law has the nature of bilateral contract. From a comparative perspective, this attitude is universal. This is also true in German Bankruptcy Act or American Federal Bankruptcy Act, mainly referred to at the time of the enactment of the Debtor Rehabilitation Act. In Germany, Article 103 of the German Bankruptcy Act, regarding executory bilateral contract, is applicable if a contract under public law, which is a bilateral contract, constitutes an insolvent foundation, and a contract under public law, which is a bilateral contract, has not been fully performed by the debtor and the other party at the time of the commencement of the insolvency procedure. In the United States, the provisions of Article 365 (a) of the Federal Bankruptcy Act are applied to the government contract or public contract. In light of the legislative history of the Debtor Rehabilitation Act, as long as public contract also has the nature of bilateral contract, Article 335 of the Debtor Rehabilitation Act is applicable.

B) It is necessary to systematically interpret Article 335(3) of the Debtor Rehabilitation Act.

Whether Article 335 of the Debtor Rehabilitation Act can be applied to contracts under public law, as well as the language and text of this provision, and the systematic relationship with other provisions of law or the overall legal order should be considered. Judicial precedents regard procurement contracts under the Act on Contracts to which the State is a Party or the Act on Contracts to which a Local Government is a Party, as private contracts, but other contracts under individual laws are mainly determined by public law contracts. Furthermore, even if such contracts fall under private law contracts, if they have high-level public nature, the principle of interpretation of private law can be modified (see Supreme Court Decision 2002Du10209, Feb. 26, 2003).

채무자회생법은 그 제정 이후 방위사업법 제3조에 따른 방위력 개선사업을 수행 중인 사업자에 대해 파산이 선고되는 경우 무기체계의 조달을 확보하기 위하여 파산관재인이 '국가를 상대방으로 하는 방위사업법 제3조에 따른 방위력 개선사업 관련 계약'을 해제·해지하고자 할 경우에는 방위사업청장과 협의하도록 하는 제335조 제3항을 신설하였다. 방위력 개선사업 관련 계약의 법적 성질이 중요한 것이 아니라, 입법자가 방위력 개선사업 관련 계약의 고도의 공익적 성격을 고려하여 특칙을 정하였다는 것이 중요한 것이다. 그런데도 그 밖의 공법상 계약이나 민간투자법상 실시협약에 대해서 아무런 특칙을 정하지 않았다.

In light of the legislative background and purport above, there is no reason to protect public contracts other than those related to defense force improvement projects in public law than those related to defense force improvement projects under Article 335(3) of the Debtor Rehabilitation Act, and Article 335(1) of the Debtor Rehabilitation Act applies to the instant concession agreement.

F. Whether the bankruptcy trustee's right to terminate the contract conflicts with the defendant's right to terminate the contract or causes moral hazard

The Majority Opinion holds that granting the right to terminate the instant case to the trustee in bankruptcy is likely to infringe the Defendant’s right to terminate the instant concession agreement and cause moral hazard to the concessionaire. However, such an attitude is unreasonable.

Article 309 of the Debtor Rehabilitation Act provides that a court may dismiss a petition for bankruptcy when it is deemed that a petition for bankruptcy is not bona fide or even if the cause of bankruptcy exists, if the petition for bankruptcy is deemed an abuse of the bankruptcy procedure. The meaning of the declaration of bankruptcy against the debtor is an anti-faith that the petition for bankruptcy is not bona fide or any abuse of the bankruptcy procedure. The bankruptcy court may control the abuse of the bankruptcy procedure or the moral hazard of the debtor in the course of rendering the bankruptcy against the debtor after examining the requirements established under the Debtor Rehabilitation Act. The assertion of the application of Article 335(1) of the Debtor Rehabilitation Act by the bankruptcy of the debtor who is declared bankrupt following such review is the right guaranteed by Act and the obligation to the bankruptcy estate and the total bankruptcy creditors. If the right of the bankruptcy trustee is restricted on the grounds that there is no express provision restricting the trustee’s right, such restriction would be likely to undermine the debtor’s moral hazard of the debtor’s bankruptcy.

The instant concession agreement provides that the Defendant may terminate the contract on the ground of the concessionaire’s bankruptcy (Articles 53(1)3 and 58(1)). The Defendant’s right to terminate under Article 335(1) of the Debtor Rehabilitation Act and the Defendant’s right to terminate under the instant concession agreement are separate rights that are exercised according to different requirements. Since the right to terminate the contract may exist concurrently, the former is recognized and does not infringe upon the latter.

If the lessee is declared bankrupt, the Civil Act provides that the lessor or the trustee in bankruptcy may notify the lessor of the termination of the contract (Article 637(1)), and that the employer or the trustee in bankruptcy may terminate the contract when the employer is declared bankrupt (Article 663(1)), and that the contractor or the trustee in bankruptcy may cancel the contract when the contractor is declared bankrupt (Article 674(1)). In the bilateral contract, the principle of fairness requires the trustee in bankruptcy and both the other party to the right to cancel or terminate the contract in accordance with the principle of equity. Even if the Defendant may cancel the instant concession on the grounds of bankruptcy of the concessionaire, deeming that the concessionaire’s trustee in bankruptcy cannot terminate the instant concession on the grounds of bankruptcy does not accord with the principle of fairness

If the trustee in bankruptcy terminates the instant concession agreement, the lower court did not have deliberated on the specific scope of return or settlement obligation of the Defendant. The first legal issue of the instant case is whether the concessionaire, who is not entitled to the right to terminate under the concession agreement, can exercise the right under Article 335(1) of the Debtor Rehabilitation Act in the circumstances where the Defendant does not exercise the right to terminate, even though the grounds for termination under the concession agreement, i.e., bankruptcy of the concessionaire., whether the concessionaire, who is not entitled to the right to terminate the concession agreement, can exercise the right to terminate. If the requirements of the “non-performance of bilateral contract” as required under the said provision are not met, it would be sufficient to determine whether the termination is unlawful. However, it would be reasonable to consider how to settle legal relationship as an effect if the said requirements are satisfied, as well as how to assess the value of the management and operation right remaining after the termination of the concession agreement. However, it would be reasonable to conclude that the Plaintiff’s claim for payment of money under the concession agreement would be one of the parties to the instant termination of the concession agreement and claim for payment under the Act.

Furthermore, the instant concession agreement separately determines the method of calculating the payment amount at the time of termination according to who is responsible for the cause at the time of termination, and what stage of the project is, and in depth, the method of calculating the payment amount at the time of termination. In addition, even if the project is terminated due to a cause attributable to the project implementer, the agreement was concluded to preserve at least the amount of “investment-private partnership fund” (see Articles 60(1) and 11 of the instant concession agreement). This shows that, in light of the fact that the competent authority acquired the ownership of facilities at its own expense, it was the basic structure of the instant concession agreement to compensate at least the cost already invested in the project implementer at its own expense. In this respect, the conclusion of the

It is difficult for a concessionaire to run a private investment project any longer due to bankruptcy, and there is a significant risk to the general public’s well-being and public welfare by using the relevant facilities. Nevertheless, it may be said that the competent authority’s continued performance of a debtor who goes bankrupt without exercising the right to termination under the concession agreement would abuse permissible discretion regarding the exercise of the right to termination of the agreement guaranteed by the competent authority. The conclusion of the judgment is likely to cause a crime of uncompacting the competent authority to neglect a project without responsibility without termination of the concession agreement of this case.

G. Conclusion

Article 335(1) of the Debtor Rehabilitation Act is not applicable to the instant concession agreement, since the instant concession agreement is not a bilateral contract but a subsidiary debt is infinite, while managing and operating the relevant facility. However, given that the instant concession agreement is a bilateral contract and the Defendant’s debt has not been partially performed, it is reasonable to deem that the trustee in bankruptcy can terminate the instant concession agreement pursuant to Article 335(1) of the Debtor Rehabilitation Act regarding both parties’ executory bilateral contract.

As above, I express my concurrence with the Majority Opinion.

Justices Park Sang-ok

Justices Lee Ki-taik

Justices Kim Jae-hyung

Justices Park Jung-hwa

Justices Ansan-chul

Justices Min You-sook

Justices Kim Jong-soo

Justices Lee Dong-won

Justices Noh Jeong-hee

Justices Kim Jong-hwan

Justices Noh Tae-ok

Justices Lee Dong-gu