면책채무와 담보권의 설정·이전·실행에 관한 연구

Abstract

In accordance with the Debtor Rehabilitation And Bankruptcy Act, debtors who have completed rehabilitation procedures, bankruptcy procedures, and individual rehabilitation procedures are exempted. There are legal disputes regarding effect of immunity, which is natural obligation view and extinction of debt view. Natural obligation view is that as a result of the extinction of liability, immunity debts remain in the form of natural debt. On the other hand, extinction of debt view believes that the debts are extinct due to immunity. The differences between the two views surrounding the effect of immunity have a wide range of effects on the substantive and procedural legal issues about immunity debts and its security interest. according to extinction of debt view, there is no basic legal relationship between the establishment, transfer, and execution of security rights. On the other hand, according to the natural obligation view, the possibility of establishing security rights for immunity debt, transfer of security rights due to transfer or inheritance of immunity debt, and the feasibility of security rights execution in immunity debt are problematic. this paper studied specific legal problems caused by the establishment, transfer, and execution of immunity debt and security rights. The establishment of the security right was reviewed by dividing it into before and after the exemption decision, and the transfer of the security right was argued around the transfer and inheritance of the immunity debt. In addition, the execution of the security right was divided into before and after the exemption decision in consideration of the characteristics of the auction procedure for the execution of the security right. Finally, this paper argued for the necessity of adopting extinction of debt view to simplify legal relations and prevent unnecessary legal disputes.