도산절차의 유형 및 운영체계에 관한 고찰

Abstract

The bankruptcy procedure is a very important system for restoring the financial transaction order through the liquidation or rehabilitation of the debtor who is in a state of financial failure. The types of bankruptcy procedure need to be established and operated so that such institutional functions of the bankruptcy procedure can be fully exercised. However, the current bankruptcy law classifies the types of bankruptcy procedure by the amount of debt. This position does not correspond to the objectives of the bankruptcy procedure. The type of bankruptcy procedure should be divided not only by the amount of the debt but also by the cause of the debt, and the number of stakeholders such as creditors. Therefore, it should be divided into the consumer bankruptcy procedure and the corporate bankruptcy procedure. In the case of corporate bankruptcy procedure, it is necessary to provide a simple bankruptcy procedure for small business owners so that the purpose of the bankruptcy procedure can be achieved quickly and efficiently. Also, in order to prevent the moral hazard of the debtor, it should be operated in conjunction with the private debt adjustment system. In addition, the effectiveness of the procedure should be enhanced by introducing the automatic stay system in the United States. This avoids unnecessary waste of time and money, and avoids the risk of loss of rehabilitation opportunity due to time gap between application and decision. Finally, by unifying the application of the bankruptcy procedure, it is necessary to make it easier for the debtor to access the bankruptcy procedure. However, even if the application procedure is separated as in the current Bankruptcy law, it is necessary to prevent the unnecessary repetition of procedures by establishing a linkage system between bankruptcy procedures.