회생위원의 역할과 관련한 개인회생절차의 실무상 쟁점

Abstract

The appointment of rehabilitation commissioners is left to the discretion of the court. However, the court is in practice appointing rehabilitation commissioners for all individual rehabilitation applications. The rehabilitation commissioner is involved in all aspects of the individual rehabilitation process. The direction of the rehabilitation commissioner in the conduction of individual rehabilitation work can influence on the realization of the purpose of the legislation. However, the specific direction of the rehabilitation commissioner in the conduction of individual rehabilitation is not stipulated in any law or regulation. The primary work of rehabilitation commissioners is the inspection of the debtor’s properties and income and the allocation of repayment to the creditors. This means that the objective feature of the work of the rehabilitation commissioner is for the interest of creditors. In consideration of the fact that the individual rehabilitation process is a collective collection process, the rehabilitation commissioner is thought to be in the position of an assistant who represents the “collective” interest of creditors. In view of the position of rehabilitation commissioners, it is required that rehabilitation commissioners calculate the properties and income and allocate them to creditors rapidly and fairly. In order for the rehabilitation commissioners to properly perform its role, the following points need to be improved. The half of the properties of the debtor’s spouse in the calculation of the properties of the debtor in practice. It is difficult to allow under the current civil law. Considering that the debtors are entitled to manage and dispose of the individual estate and to submit relevant document proving their properties and income, the system for inquiry regarding properties and income needs to be established. The hidden properties or incomes are discovered occasionally through the objection of the creditor to the repayment plan or the application of order for exercise of avoidance power. The law needs to be revised in order that the rehabilitation commissioner can exceptionally exercise the avoidance power when a creditor does not exercise it. It is necessary to tighten the posterior examination for the rapidity and fairness of the individual rehabilitation process.