일본 파산법제에서 면책의 변화에 대한 법제사적 연구

Abstract

In Japan, a bankruptcy discharge system has existed since the Kansei era(1789-1800). In the Edo period, a shogunate system(Edo Bakufu) was dominated by samurai and the nation was operating under precedents and customary law, rather than statutory law. "Bun-san", which is considered as insolvency proceedings, was instituted nationwide as a collective debt restructuring procedure. The “Bun-san” procedure included a very modern concept of “exemption of residual debt for bankrupts.” In general, the modernization of the legal system in Japan has been recognized as being influenced by European law after the Meiji Restoration. In fact, a bankruptcy discharge system existed prior to this. However, the system disappeared in the late 19th and early 20th centuries when European law was introduced in Japan. After the World War II, Japan was under the rule of GHQ in 1952 and the bankruptcy discharge system was incorporated into the Japanese Bankruptcy Law under the influence of the US Bankruptcy Law. The Bankruptcy Act, which was first enacted and enforced in Korea in 1962 (enacted and enforced on Jan. 20, 1962, Act No. 998), was almost the same as the Japanese Bankruptcy Act revised in 1952. Thus far, while many prior research have documented how bankruptcy discharge systems developed in other countries, there is no research focusing on Japan's bankruptcy discharge as a main research question. This is particularly the case for bankruptcy discharge system prior to the former Bankruptcy Act enacted in 1922. This study investigates how the bankruptcy discharge legislation historically reformed in Japan by reviewing the legislative processes, reasons, and social background, and considers the meaning of bankruptcy discharge according to the times. Specifically, I chronologically outline the bankruptcy discharge legislations in Japan: from “Bun-san” procedure in the Edo and early Meiji periods, the former Commercial Code Part III bankruptcy enacted in 1890 and the Kashibunsan Act enacted in 1890, the former Bankruptcy Act enacted in 1922, the revised Bankruptcy Act in 1952, to Japan’s current Bankruptcy Act in 2004. In doing so, this paper could provide implications on the effect of “Bun-san” bankruptcy discharge in the Edo period.