면책채무 지급약정의 효력에 관한 연구 -채무자회생법⋅채권추심법 상의 추심금지조항의 해석을 중심으로-

Abstract

Unlike the U.S., which stipulates the effect of the reaffirmation agreement by law, Korea judges effect of the reaffirmation agreement through court interpretation, as in the case of Canada and Japan. The court also denies the effect of the reaffirmation agreement, suggesting the purpose of the law, the intent of the immunity, and the interests of the bankrupt. However, the reaffirmation agreement signed by creditors and debtors based on the principle of private autonomy cannot be nullified simply by citing the purpose of the law. The effect of the reaffirmation agreement needs to be interpreted in relation to the compulsion of the prohibition against debt collection under the Debtor Rehabilitation and Bankruptcy Act and the Fair Debt Collection Practices Act. A logical and systematic interpretation of the Debtor Rehabilitation and Bankruptcy Act and Fair Debt Collection Practices Act shows that the scope of collection acts prohibited by the two laws needs to be interpreted integrally. In addition, considering the purpose and the legislative intent of the Debtor Rehabilitation and Bankruptcy Act and the Fair Debt Collection Practices Act, the specific scope of prohibition against debt collection, creditors’ private interests, justification of immunity, and the legal stability, the prohibition against debt collection is a validity rule. Therefore, the reaffirmation agreement is invalid in violation of the compulsion of the prohibition against debt collection.