統合 倒産法案의 主要爭點

• 영문명: A Proposal for the Enactment of a Consolidated Insolvency Act
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 김재형
• 간행물 정보: 『비교사법』비교사법 제10권 1호, 39~76쪽, 전체 38쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2003.03.01

영문 초록

In the aftermath of the 1997 financial crisis, scores of Korean companies collapsed due to hefty debt, triggering a chain reaction of corporate bankruptcy. In the face of these developments, insolvency laws and practices of Korea came into the spotlight. The existence of a fair and efficient insolvency regime is critical to achieving stable economic growth. In Korea, partial amendments have been made on occasion since 1998 to the three insolvency related statutes - Corporate Reorganization Act. Composition Act and Bankruptcy Act. While these amendments helped introduce meaningful changes in the Korean insolvency system, they were essentially extemporaneous responses to a special economic situation, meaning that legislative developments of insolvency laws are still anything but over. To the contrary, the idea of enacting a consolidated Insolvency Act to replace the abovementioned three separate Acts has gained wide-ranging consensus. Legislative efforts to integrate insolvency-related Acts are underway in Korea. As mentioned before, under the current Korean insolvency regime, there are three different types of insolvency proceedings, namely, the Corporate Reorganization Act, the Composition Act and the Bankruptcy Act. Such dispersion of the insolvency system over three different Acts erodes the relevancy of and the flexibility between the proceedings. By consolidating these separate regimes into a unified coda of the consolidated Insolvency Act, insolvency proceedings in general can become much more swift and efficient, as creditors and other interested parties need not contemplate the appropriate proceeding acceptable by the courts- Enacting a consolidated Insolvency Act under which both types of insolvency proceedings - liquidation proceeding as we1J as corporate reorganization proceeding - are provided would offer many viable solutions to the problems faced under the existing insolvency regime. In designing an effective corporate insolvency regime, valuable insight could be drawn by comparing the different insolvency legislations in other countries. Especially, the US Bankruptcy Law is particularly noteworthy considering the broad-based impact. However, it is vital to note that each country's insolvency law has distinctive features resulting, in large part, from the unique elements in its business and legal systems. Any attempt at transplanting another country's advanced system without consideration of the underlying country-specific conditions would serve only to create serious confusion. Therefore, in searching for an effective insolvency regime, key emphasis ought to be placed on identifying an insolvency system that is both reasonable and practically applicable to the legal and business environment of the particular country.

목차

1. 서론

2. 도산법제의 현황과 통합의 필요성

3. 도산절차의 신청요건

4. 자동적 중지제도의 도입문제

5. 도산절차에서 회사지배구조의 변화 - 특히 미국식 DIP제도의 수용 문제

6. 법원의 전통성 확보방안과 파산법원의 설치문제

7. 채권자의 지위강화

8. 채권자 등 이해관계인의 이익조정

9. 도산절차의 신속성 확보문제

10. 상계권, 담보권, 부인권 등 실체법적 규정의 정비

11. 법률의 명칭, 용어와 체계의 정비

12. 결론

참고문헌

ABSTRACT