코로나19 위기의 개인채무자 구제-계약법적 구제수단과 도산법적 구제수단

Abstract

The COVID-19 pandemic has continued globally for over two years, not only resulting in many changes in our lives but also having a huge impact on the global economy. Though a vaccine has been developed, the main consensus is that the true crisis due to economic stagnation is only starting to take shape. Meanwhile, the features of damages incurred by individual debtors due to COVID-19, such as non-voluntariness (being influenced by external factors), massiveness, unpredictability, and diversity and severity of harm, etc., highlight the need for a more assertive remedy. The purpose of this study is to comprehensively examine and inspect legal relief measures provided in the Korean legal system to give a relief to individual debtors in the face of a serious crisis caused by COVID-19. The first part of the article examines factors related to remedies provided under contract law, namely, the meaning, function, and limitation of a risk allocation clause, impossibility of performance, principle of change in circumstances, and forces majeure from an analytical perspective. While analytical approach assures concrete reasonableness and provides legal stability in individual cases, it is slow to respond quickly to crises and is completely governed by the principle of contract compliance, thus has limited applicability when the COVID-19 response mechanism transitions into a gradual return to normalcy. In the part concerning contractual and legal remedies, Korean legislations are compared with foreign legislations newly introduced in response to the COVID-19 crisis from a legislative perspective. Legislative approach is adapt to coming up with a speedy response to crisis, resolving issues that are difficult to address with legal principles, and making universal and unified regulations for all people possible. However, it is a temporary measure and thus is adamant to sufficiently responding to prolonged crisis, and is limited in a sense that the risks of adverse effects make legislators refrain from introducing strong regulations. The next part of the article examines remedies provided under insolvency law by each stage of rehabilitation proceedings: (a) before a decision on the commencement of rehabilitation procedures is made (easing of application qualifications, prompt issuance and easing requirements of orders for prohibition and interruption, etc.); (b) after a decision on the commencement of rehabilitation procedures is made and before authorization (shortening of repayment period, lenient recognition of additional living expenses, strict interpretation of abolishment conditions prior to authorization, etc.); and (c) after authorization (handling of cases where reorganization plans were not executed, modification of reorganization plans, hardship discharge), along with a review of the actual changes in respond to crisis. In addition, problems in need of legislative resolution (unfaithful representation of lawsuit, excessive court fees and activation of litigation aid, legislative priority of tax claims) are pointed out. Remedies under insolvency law are also examined by each step of individual bankruptcy proceedings: (a) before declaration of bankruptcy (easing of application eligibility, activation of litigation aid, prompt bankruptcy declaration); and (b) after declaration of bankruptcy (conversion and relinquishment of an estate, use of compromise contracts as an alternative to exercising avoidance power, active utilization of discretionary discharge). Also, the problems needing legislative resolution (disadvantages due to declaring bankruptcy, procedures for withdrawing discharge applications, problems of non-dischargeable debts) are pointed out. The main purpose of remedies under insolvency law is financial restoration of debtors, and restrictions of the policies for contract compliance are not applied. Furthermore, because there are programs for responding to changes in circumstance legislated, a more flexible approach is possible, and it also has the advantage that it has a broad scope for utilizing the official authority and judicial discretion. Meanwhile, various disadvantages that make people hesitate using individual insolvency procedures and factors that interfere with the new start of debtors are tasks that must be quickly overcome. The failure of individuals will lead to the collapse of the society. The ability to protect individuals will become the driving force for safeguarding the entire society and will be able to minimize the side effects that this unprecedented crisis will leave behind. That is why the roles and missions of lawyers and the court are emphasized in times of emergency and crisis.