개인채무자보호법상 기한의 이익 상실 제한과 장래이자채권의 면제

Abstract

The 「Act on the Management of Personal Financial Bonds and the Protection of Personal Financial Debtor」 (hereinafter referred to as “Personal Financial Debtor Protection Act”) was to be passed at the last regular session of the 21st National Assembly. The Individual Financial Debtor Protection Act is scheduled to go into effect nine months after the government goes through the legal promulgation process. The Financial Services Commission evaluated that the “Korean-style public-private debt restructuring system” spanning “financial companies, credit recovery committees, and courts” was completed as financial companies’ own debt restructuring was legislated through the Personal Debtor Protection Act. However, the core of the “Korean-style public/private debt adjustment system” lies in the “Korean style.” It was a logic that justified imposing certain restrictions on the exercise of basic rights universally guaranteed in democratic societies around the world. To this extent, the enactment contains many provisions that infringe on creditors' fundamental and property rights, such as freedom of contract and freedom of business. In particular, the enactment bill not only has legal problems that go against the principles of private autonomy, such as freedom of contract and the principle of self-responsibility, such as ‘limitation on loss of profits by the deadline’ and ‘exemption of future interest claims’, but also has the potential to be unconstitutional due to excessive legislation, such as infringing on creditors’ property rights. It's plentiful. Accordingly, this study first looked at the content of the limitations on loss of profits within the period under the Personal Debtor Protection Act (Article 6 and Article 7) and the problems caused by the limitation of effect, and then looked at the content and problems of the exemption from future interest claims (Article 9). According to this, Article 6 of the Personal Debtor Protection Act contains content that runs counter to the principle of self-responsibility without reasonable grounds in relation to transactions between personal financial debtors and bond finance companies, etc., which are difficult to regard as being significantly different from other civil transactions to which the principle of self-responsibility applies. It contains. If the Individual Debtor Protection Act is implemented, delinquency management costs, which are reflected in advance in transaction interest rates, will inevitably increase significantly. The resulting disadvantage is bound to be passed on to all financial debtors, including sincere personal financial debtors. The results of enforcement of Article 9 of the Individual Debtor Protection Act will be the same as Article 6. The enforcement of this law will inevitably result in a zero-sum effect in which the share borne by creditor financial institutions is transferred to individual financial debtors. Forcing a one-sided burden on creditors and mandating the exemption of overdue interest, which is compensation for damages arising from default, also conflicts with the legal principles of overdue interest. Since it is not expected to increase the overall welfare of society enough to change our legal system, Articles 6 and 7, which limit the loss of term profits, and Article 9, which exempts future overdue interest claims arising from the debtor's delinquency, were also re-enacted before the enforcement of the law. It is desirable to discuss and delete it to stabilize credit practices and the supply of funds to consumers.