개인회생절차에서 개인회생채권의 확정 문제

• 영문명: The Issues of Claims Adjudication Process in Individual Rehabilitation Procedure
• 발행기관: 한국민사소송법학회
• 저자명: 오세용(Oh, Se Yong)
• 간행물 정보: 『민사소송』제21권 제1호, 397~442쪽, 전체 46쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2017.05.30

영문 초록

Individual rehabilitation procedure under the “Debtor Rehabilitation and Bankruptcy Act” is a type of insolvency procedure, which is distinct from both rehabilitation and bankruptcy procedure. Relative to the rehabilitation procedure, individual rehabilitation procedure has far fewer provisions and is insufficient to resolve issues that arise in practice. In particular, the gap between legislation and actual practice is significant in the adjudication procedure for individual rehabilitation claims. Hence, the need for improvement is getting bigger. Three issues are discussed in this article. The first issue concerns the problem about the relation between objection and motion for claim allowance proceedings. Cases in which a debtor accepts the objection filed within the period of objection are clearly regulated, and therefore do not pose a problem. However, it is unclear how to handle cases in which the motion for claim allowance proceedings is submitted after the period of objection has expired due to the failed acknowledgement of the objection by the debtor. Specific provisions are called for. The second issue regards the relation between objection and the change of lawsuit for claim allowance proceedings in respect of individual rehabilitation claims. If any lawsuit on individual rehabilitation is pending at the time of commencement, a change of claim must be filed within the ongoing litigation procedure instead of filing a motion for claim allowance proceedings. However, the necessity of objection claim in individual rehabilitation procedure and uncertainty of the deadline for change of lawsuit in trial are controversial issues that are being debated. The third issue concerns the issues on the determination of tax claim, which falls under the individual rehabilitation claim. Unlike the individual rehabilitation procedure, rehabilitation and bankruptcy procedures have specific provisions on how to decide the amount of tax claim. It is unclear how to decide the amount of tax claim in cases where a debtor does not acknowledge the tax creditor’s objection in individual rehabilitation procedure. Considering the distinct and unique characteristics of tax claim, the resolution by means of administrative proceedings such as rehabilitation procedure would be more appropriate.

목차

Ⅰ. 들어가며

Ⅱ. 개인회생채권의 확정 절차 개요

Ⅲ. 외국의 입법례

Ⅳ. 실무상 문제점 및 개선방안

Ⅳ. 마 치 며

참고문헌

키워드

개인회생채권 이의신청 채권조사확정재판 개인회생채권조사확정의 소 조세채권 individual rehabilitation claim objection motion for claim allowance proceedings lawsuit for claim allowance proceedings tax claim