파산절차와 부동산 강제경매절차의 관계에 관한 실무적 고찰 - 부동산 강제경매절차에 대한 실무적 쟁점을 중심으로 -

Abstract

This study focuses on the relationship between bankruptcy proceedings and forced execution, specifically examining the efficacy of real estate forced execution. Forced execution involves creditors selling a debtor's property individually to recover unpaid debts, whereas bankruptcy proceedings entail collective evaluation and distribution of all debtor assets until the declaration of bankruptcy. Despite their similar purposes and compulsory nature in debt settlement, these procedures interact in practical application, often creating tension. The research adopts a method of analyzing the legal relationship between the Civil Execution Act and the Debtor Rehabilitation Act. By chronologically approaching bankruptcy stages—from application to declaration and cancellation—the effectiveness of real estate forced execution varies under Article 348, Paragraph 1 of the Debtor Rehabilitation Act, which retroactively applies. However, the efficacy of the forced sale and distribution process under the discretion of the bankruptcy administrator according to Article 348, Paragraph 1 of the Debtor Rehabilitation Act can differ. Considering the intent of Article 348, Paragraph 1 of the Debtor Rehabilitation Act, if the bankruptcy administrator's intent to proceed is not confirmed and the execution court proceeds with auctioning the bankruptcy estate, it should be considered grounds for auction invalidation. Merely completing payment of the purchase price under Article 135 of the Civil Execution Act does not immediately validate acquisition of property rights. Furthermore, when forced execution proceeds on property within the bankruptcy estate, methods of payment for sale proceeds, such as acquisition or offset payments, should not be permitted. As institutional safeguards, recommendations include legal codification clarifying the notification system regarding the declaration of bankruptcy to the execution court by the rehabilitation court after bankruptcy declaration, defining the precedence relationship between Article 348, Paragraph 1 of the Debtor Rehabilitation Act and Article 135 of the Civil Execution Act. Legislative measures should also address the bankruptcy administrator's intent to proceed or not proceed with forced execution, and reasons for objections to auction permits regarding property within the bankruptcy estate under civil execution law.