기업회생절차에서 자동중지제도의 도입에 관한 소고

Abstract

Today’s reorganization proceedings added the order of comprehensive prohibition to the Corporate Reorganization Act that institutionalized provisional remedy and individual stay order so as to preclude any voluntary payment by debtors and any action by creditors to collect before the court order commenced. Reorganization proceedings, on the other hand, commands comprehensive stay order against all creditors, forbidding via law all unsecured and secured creditors from executing any individual action or attempt to collect. Furthermore, when the Revised Bill of Debtor Rehabilitation and Bankruptcy Act was proposed in the National Assembly in 2011, it was suggested to partially adopt Automatic Stay from the Bankruptcy Act in U.S Federal Law. Automatic Stay prohibits all voluntary payment by debtors and all actions by creditors to collect once bankruptcy petition is filed; thus requires no separate stay order from the court. This serves to expedite the petition process and to precipitate economic recovery of the debtor, and is conducive to fair allocation of payment to the creditors, leading to their satisfaction. Introduction of Automatic Stay is deemed beneficial to the debtor’s recovery because stay order becomes effective at the moment of the filing of bankruptcy petition rather than the court’s approval or the court’s order of provisional remedy or stay order, which would take place later in time. The 18th National Assembly attempted to legislate Automatic Stay; however it is currently on halt as of June 2012 with the Assembly’s term having reached termination. Ministry of Government Legislation proclaimed that it is to pursue the legislation. This paper discusses several legal recourses to regulate unsecured or secured creditors from undertaking any action to collect prior to the court’s approval of bankruptcy petition, which is permitted under the current reorganization proceedings. Furthermore, the author has reviewed the details of Automatic Stay as part of the Revised Bill of Debtor Rehabilitation and its impact on South Korea.