채무자회생법상 자동중지제도 도입의 필요성과 정당성

Abstract

The Corporate Rehabilitation Proceeding is a court-led legal protection for companies in financial difficulties, providing them a way to revive by reducing significant amount of debt and/or granting longer period of grace based on Debtor Rehabilitation and Bankruptcy Act. In order to fully utilize this system,it is necessary to keep the companies’ property well preserved. For this reason, the Debtor Rehabilitation and Bankruptcy Act provide the preservation-of-property measures for the creditors and the debtors, the companies, before and after the decision on commencement of the proceeding. Nevertheless, the current system has repeatedly been criticized for its ① time lag from the day of application filed and the actual point that it is given a stay order, ② cumbersome nature in which a court has to meddle in every step, ③ unnecessary waste of time and money. Many of the developed countries have adopted the Automatic Stay System that suspends the execution of the creditor as soon as a debtor’s application filed, which is considered to relieve the burden of the court a great deal. It is similar to our current system in the sense that it sets its purpose in achieving the efficient revival of a company and the fairness in the process. Under the Automatic Stay System, however, the company cannot pay back its debt nor the creditor claim for a credit execution once the debtor’s application filed. In contrast, our current system requires not only a debtor’s application filed but a court’s preservation measure when the claim is considered legitimate. Therefore, the former system takes the preservation of the company’s property essential while it is delayed and optional in the latter. It is imperative that we systematically analyze the Automatic Stay System and introduce what would fit in our actual circumstances.