미국연방파산법상 도산실효조항의 효력

Recently, there were several lawsuits arising out of Lehman Brother`s bankruptcy in various countries. They were concerned with the enforcement of ipso facto clauses in insolvency proceedings. There was also a case about joint venture agreement which included an ipso facto clause in Korea in2007. Debtor Rehabilitation and Bankruptcy Act did not include any rule about this issue and there was no precedent in Korea. So it was a big question whether ipso facto clauses can be enforced in insolvency proceedings. Ipso Facto means ``by the fact itself``. And an ipso facto clause is a contract provision which states that the contract may be terminated or modified if either party files a insolvency petition. It is a very common way to evade the risk of a party`s bankruptcy by using ipso facto clauses in commercial transactions. The enforcement of ipso facto clauses is related to two oppositional values. One is the principle goal of insolvency regime, debtor`s reorganization and equality of distribution. And the other is freedom of contract. So the problem about enforcement of ipso facto clauses in the insolvency proceedings means to set the limitation between purpose of the insolvency law and freedom of contract. To decide whether ipso facto clauses are valid, this thesis tried to find the extent of insolvency law and freedom of contract by studying the U.S. Bankruptcy Code and cases. There are two representative statutory law about ipso facto clauses in the U.S. Bankruptcy Code. One is section 541(c) which is concerned with creating the bankruptcy estate. The other is section 365(e)(1) concerning the trustee`s authority to choose between assuming and rejecting executory contracts. Section 365(e)(1) of the U.S. Bankruptcy Code states that ipso facto clauses are unenforceable in bankruptcy, with certain exceptions. These exceptions provided in section 365(e)(2) are the contracts cannot performed by the third parties and the financial accommodations.