미국 연방파산법 제15장의 구조와 시사점
The Legal System of the Chapter 15 of U.S. Bankruptcy Code and Its Implications
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Chapter 15 of United States Bankruptcy Code incorporated the UNCITRAL Model Law on Cross Border Insolvency in 2005. The law provides solutions to problems which arise in connection with cross-border bankruptcy, allowing US courts to issue subpoenas, orders to turn over assets, the issuance of stays on pending actions, and orders of other types as circumstances dictate. The ancillary proceeding permitted under Chapter 15 is often a more efficient and less costly alternative to initiating an independent bankruptcy proceeding in the United States. It also avoids the conflicts which could arise between the jurisdictions involved in two independent bankruptcy proceedings initiated in connection with the same debtor. Chapter 15 also establishes mechanisms for the cooperation between US and foreign courts and representatives regarding proceedings which involve the same debtor. Under Chapter 15 a representative of a corporate bankruptcy (insolvency) proceeding outside the U.S. can obtain access to the United States courts. It allows cooperation between the United States courts and the foreign courts, as well as other authorities of foreign countries involved in cross-border insolvency cases. In Korea, from 2006, the new era of insolvency law governing international insolvency began. The previous three bankruptcy laws - Bankruptcy Act, Composition Act, and Corporate Reorganization Act - have been merged into, and were replaced by, the Debtor Rehabilitation and Bankruptcy Act of Korea (DRBAK). One of the most important changes on the Act is the introduction of modified universalism of an international insolvency part by adopting the UNCITRAL Model Law. This Paper introduces international insolvency law regime of United States. By comparing U.S. Bankruptcy Code Chapter 15 and Korean legal system, the Paper proposes that international suitability and global fitness in international insolvency regime in Korea.
Abstract
Chapter 15 of United States Bankruptcy Code incorporated the UNCITRAL Model Law on Cross Border Insolvency in 2005. The law provides solutions to problems which arise in connection with cross-border bankruptcy, allowing US courts to issue subpoenas, orders to turn over assets, the issuance of stays on pending actions, and orders of other types as circumstances dictate. The ancillary proceeding permitted under Chapter 15 is often a more efficient and less costly alternative to initiating an independent bankruptcy proceeding in the United States. It also avoids the conflicts which could arise between the jurisdictions involved in two independent bankruptcy proceedings initiated in connection with the same debtor. Chapter 15 also establishes mechanisms for the cooperation between US and foreign courts and representatives regarding proceedings which involve the same debtor. Under Chapter 15 a representative of a corporate bankruptcy (insolvency) proceeding outside the U.S. can obtain access to the United States courts. It allows cooperation between the United States courts and the foreign courts, as well as other authorities of foreign countries involved in cross-border insolvency cases. In Korea, from 2006, the new era of insolvency law governing international insolvency began. The previous three bankruptcy laws - Bankruptcy Act, Composition Act, and Corporate Reorganization Act - have been merged into, and were replaced by, the Debtor Rehabilitation and Bankruptcy Act of Korea (DRBAK). One of the most important changes on the Act is the introduction of modified universalism of an international insolvency part by adopting the UNCITRAL Model Law. This Paper introduces international insolvency law regime of United States. By comparing U.S. Bankruptcy Code Chapter 15 and Korean legal system, the Paper proposes that international suitability and global fitness in international insolvency regime in Korea.
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