도산절차와 관련된 채권압류 및 추심·전부명령에 대한 즉시항고의 처리방안에 대한 연구

Abstract

The fact that a debtor got into an insolvency procedure has impact on the civil compulsory execution process against the debtor. A seizure of claims, collection and assignment order issued against the debtor are no exception. The insolvency procedures stipulated in Debtor Rehabilitation and Bankruptcy Act can be classified into three categories: a bankruptcy procedure; an individual rehabilitation procedure; and a rehabilitation procedure. Although all the procedures serve a similar purpose, they show difference upon (ⅰ) whether the bankruptcy court is allowed to order suspension, prohibition, or rescission of the compulsory execution procedure even before the commencement of the procedure; (ⅱ) the way the commencement of the procedure affects the compulsory execution process; and (ⅲ) whether the immunity arisen from the procedure immediately makes the title of execution deriving from the immune claims void. In addition, all the respective insolvency procedure can be divided into three stages: an application stage, commencement stage, termination and immunity stage, which have different impact on the compulsory execution procedure. Therefore, it is critical for the appellate court that deals with the immediate complaint lodged against the order for seizure, collection, or assignment to take a close look on (ⅰ) the type of insolvency procedure the debtor is involved in and (ⅱ) the stage of the procedure the debtor is going through. Without considering those factors, it is easy for the appellate court to make an erroneous decision with regard to ordering a stay of the compulsory execution process or deciding whether to accept the immediate complaint.