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| TITLE | Supreme Court en banc Decision 2017Da273441 Decided May 6, 2021 【Assigned Amount】 [full Text] |
|---|---|
| Summary | |
| Supreme Court en banc Decision 2017Da273441 Decided May 6, 2021 【Assigned Amount】 【Main Issue and Holding】 In a case where: (a) Company A concluded an agreement with Local Government B on construction and implementation of an underground parking building based on a build-operate-transfer (BOT) model prescribed in Article 4 Subparag. 1 of the Act on Public-Private Partnerships in Infrastructure; (b) Company A went bankrupt while duly operating the underground parking building, etc. in accordance with the management and operation right entrusted upon it; and (c) whether Company A’s bankruptcy trustee may exercise a right of rescission pursuant to Article 335(1) of the Debtor Rehabilitation and Bankruptcy Act became an issue, the case holding as follows: (a) Article 335(1) of the Debtor Rehabilitation and Bankruptcy Act may either be applied or applied mutatis mutandis to legal relationships under public law consisting of the elements of a bilateral contract; (b) however, the legal relationship between Company A and Local Government B at the time of the bankruptcy is difficult to be evaluated as constituting a bilateral executory contract where both parties fail to perform their respective obligations; and (c) therefore, the bankruptcy trustee of Company A cannot exercise a right of rescission | |
