개인파산절차의 신속화를 위한 실무적 개선방안

Abstract

The individual bankruptcy proceeding aims to provide creditors with an opportunity to obtain performance on obligations and debtors with an opportunity for financial rehabilitation through a series of process encompassing declaration of bankruptcy on debtors in insolvency, investigation and confirmation on bankruptcy claims, management and conversion of bankruptcy estate, and a discharge and reinstatement. In general bankruptcy proceedings, it is common to emphasize prompt treatment to prevent depreciation in value of the bankruptcy estate. It is likewise in the case for individual bankruptcy proceedings, but the following unique characteristics are particularly taken into account: ① The main purpose of the individual bankruptcy proceeding is a discharge, unlike the corporate bankruptcy proceeding; ② for personal debtors who mostly involve physical or mental illness of themselves or family members, the individual bankruptcy proceeding functions as a life-saving/emergency procedure; and ③ the lump sum nature of the individual bankruptcy proceeding requires the establishment of a unified and consistent service system. The following proposals are presented as specific plans for the implementation of prompt individual bankruptcy proceedings: ① the ways to expedite bankruptcy declarations include the simplification, differentiation, and division of the examination procedures so that each step of the procedure can be handled on a regular basis; charging the national treasury with stamp duties and service fees; providing instructions at the window; combined and concurrent service of compensation and prepayment orders; active utilization of ex officio litigation aids; reduction of the prepayment/compensation period; issuance of prompt decision of rejection and the court’s review of its own judgment that was subject to an appeal; and increasing the number of declarations of bankruptcy; ② the ways to expedite service include the utilization of MyData industry; prompt issuance of address correction orders and notification; provision of domestic service or alternative methods for creditors living abroad; ③ with regard to continuation of proceedings, it must be noted that while continuation is preferred than presumption, it is best to minimize the recourse to continuation, practice it within a reasonably designated period, and shorten the period; ④ regarding the deadline of inspection of claims, the following measures are recommended, including the bankruptcy court’s avoidance of unnecessary designation of the inspection period of claims; consolidation of the first creditor assembly and inspection date of claims; stricter regulation on the reporting of claims after the lapse of the designated period for reporting; and prompt processing of final judgment on the investigation; ⑤ regarding conversion and waiver of conversion into cash, the following measures are recommended, including promotion of the widespread use of the court’s public noticeboard; facilitation of various optional conversion methods such as internet auction or professional agency; and establishment of reasonable standards for conversion waiver; and ⑥ regarding a discharge, the following measures are recommended, including omission of the period of hearing of opinion (a discharge without examination, a prompt discharge of vulnerable debtors or its reasonable operation, the use of the hearing of opinion in a written form); strict interpretation of the grounds for not granting a discharge; and active utilization of a discretionary discharge. Finally, for prompt implementation of individual bankruptcy proceedings, the role of courts and trustees in bankruptcy as the “active case manager” must be emphasized across all steps taken.