현행 개인회생절차의 실무상 문제점과 개선방안 - 배우자재산의 청산가치 산입방식을 중심으로 -

Abstract

Social anxiety caused by household debt is aggravating due to the recent economic downturn caused by the worsening situation of COVID-19. The establishment of a social safety net is urgently required, in order to overcome the economic crisis of the underprivileged. In such circumstances, one cannot deny that the individual rehabilitation procedure, along with other insolvency measures, serves as a "social safety device for any citizen to get back up on his feet even if they fail.“ In principle, under the individual rehabilitation procedure, one is exempt from debt remaining after reimbursing a portion of the debt for a period three years or less. The most important principle under this procedure is that the present value of the reimbursement must be greater than or equal to the debtor's liquidation value. This is referred to as the ‘best interests of creditors test’. At the phase of confirming all of the debtor's assets, the interest of creditors test is a crucial criteria in the individual rehabilitation procedure. When documenting the application for commencement of the individual rehabilitation procedure, the debtor's property becomes the standard for guaranteeing liquidation value when documenting a reimbursement plan. The debtor must repay the reimbursement amount more than the liquidation value calculated from the property catalogue during the reimbursement period specified in the reimbursement plan. Therefore, the liquidation value has a great influence on the debtor's reimbursement plan in the individual rehabilitation procedure. The court's current practice of the individual rehabilitation procedure requires 1/2 of the spouse's property to be reflected in the liquidation value. This is in direct conflict with the Korean civil code, which is based on the rule of separation of marital property. A uniform method of operating the individual rehabilitation procedure considering predictability, legal stability, and constitutionalism must be arranged through various discussions in oder to address the drawbacks mentioned above.