파산관재인이 환취권의 목적인 체비지를 양도한 경우 대체적 환취권을 행사할 수 있는 범위 – 대법원 2023.6.15. 선고 2020다277481 판결 –

파산 시 체비지에 대한 대체적 환취권의 행사 범위를 판례를 중심으로 검토했다.

Where the project operator has given a contractor the land secured by the authorities in recompense of development outlay in lieu of the construction fee prior to the disposal of replotting land, the land secured becomes the property that can serve as the basis for the right of repossession if the contract is legally canceled as a result of the contractor being declared bankrupt. In this case, the contractor halted the construction work at the completion rate of 74.791% relative to the work specified in the contract, which led to the cancellation of the contract by the client.

If the contractor had sold the land secured to a third party, the extent to which the client can exercise an alternative right of repossession is a matter of discussion. With regard to the above, the Supreme Court gave a ruling (2020da277481) on June 15, 2023 that in the event of the cancellation of a construction contract, the contractor should return the amount calculated by subtracting the amount corresponding to the ratio of the completed work from the land secured, which is considered the construction fee paid in advance.

The Court added that the property, for which the right of repossession aims, is limited to the amount corresponding to the rate of the unfinished work based on the contract and therefore that the client can exercise an alternative right of repossession only for the amount corresponding to the rate of the unfinished work in the price of the property sold. In this case, the project operator, or the client, sold the land secured to the contractor in lieu of paying the contraction fee and the contractor in turn entrusted the management of the real estate to a trust company.

Therefore, in order to review and determine whether the ruling was reasonable, this study first reviewed urban development that uses land replotting and land secured by the authorities in recompense of development outlay, as well as real estate management trust. It also examined whether land secured is subject to right of repossession.