개인채무자보호법상 채무조정제도의 문제점

Abstract

In the recently enacted the Act on Personal Financial Debtor in Korea, a new type of ʻindividual adjustment system regarding conditions for repayment of personal financial liabilitiesʼ was introduced for ʻpersonal financial debtorsʼ. In the past, personal financial debtors were able to adjust their debts with financial companies that the Credit Recovery Committee established to support private debt adjustment of individual debtors under the ʻʻMicrofinance Support Actʼʼ or ʻʻprivate debt adjustmentʼʼ using autonomous debt adjustment programs such as ʻʻfreeworkoutʼʼ or basic credit transactions of financial companies with individual/family bonds. In such a private debt adjustment system, voluntary participation of financial institutions, which are creditors, is the key to establishing a partyʼs agreement. To compensate for this, the Public Finance Act forces financial companies or equivalents with personal bonds to sign agreements upon request by the committee, except in unavoidable cases prescribed by Presidential Decree. On the other hand, the Personal Debtor Protection Act grants individual financial debtors the right to request debt adjustment directly to all ʻʻbonding financial companiesʼʼ instead of applying for debt adjustment to the Credit Recovery Committee. Furthermore, it states that such requests from personal financial debtors should not be unfairly rejected or delayed by creditor financial companies. In other words, personal financial debtors who are likely to be insolvent due to delinquency, etc., are allowed to enjoy the right to request individual debt adjustments and the legal effect of restricting personal financial bond and debt relations to all private credit institutions, such as the Korea Asset Management Corporation (KAMCO), or other bond financial companies prescribed by Presidential Decree. In addition, if an individual financial debtor has requested individual debt adjustments from a bond financial company, etc., it is considered that the profit of the due date is not lost until the end of the debt adjustment procedure, and the debtor is exempted from the overdue interest because the debtor has not lost the profit of the due date according to the law. This is a preferential treatment that cannot be compared with private debt adjustment under the Public Finance Act. The Financial Services Commission assessed that the Korean-style public and private debt adjustment system, ranging from financial companies to credit recovery committees to courts, has been completed as the Personal Debtor Protection Act has legislated financial companiesʼ own debt adjustment system. Perhaps, the term ʻʻKorean-styleʼʼ is due to the fact that there are no cases unfamiliar to foreign countries. In fact, the debt adjustment system presupposes voluntary concessions between creditors and debtors. Nevertheless, the existence of a separate private debt adjustment system involving administrative agencies is unusual even in light of foreign cases. Rather than being established and implemented according to the needs and demands of the parties, the Korean debt adjustment system was established and implemented according to the governmentʼs economic policy failures over the past half century, it can be seen that the government intervened in the bond and debt relationship in the financial sector, which can exert its influence, and provided legal incentives. This quasi-administrative-supported private debt adjustment system was involved in rapid performance in the short term, but only had the short-term effect of temporarily suspending debt performance. It is also undesirable in that it causes a break in the two procedures in the long term, causing a break in performance competition between the court and the Credit Recovery Committee. The debt adjustment system under the Personal Debtor Protection Act, on the other hand, can be seen as one of the modified private debt adjustment systems enforced by law against loan businesses or financial sectors in the form of small private businesses in addition to the existing ʻʻquasi-administrative organization support typeʼʼ and ʻʻfinancial sector autonomous type.ʼʼ It is not in accordance with the basic principles of the Bond Act to give various legal effects to defaulters with reasons attributable to them. The excessive infringement of the constitutionʼs freedom of business guaranteed to creditors raises doubts about the validity of enacting the Individual Debtor Protection Act. This will result in a large amount of defaults that hinder the sound development of the financial industry. In addition, debtors are likely to act strategically in the future, such as examining and choosing which debt adjustment systems are economically advantageous. As the system becomes more complex, it may not be easy to discriminate between features and it may be difficult to make choices according to individual circumstances. If it eventually results in relying on experts, even if it costs money, this will lead to an increase in debt adjustment costs. If the debt adjustment systems under the Public Finance Act and the Personal Debtor Protection Act compete for performance, it can lead to a long-term disconnection between the systems.