현행 개인회생제도의 운용상 문제 및 개선방안 (A study on the improvement of the operation scheme in the Personal financial workout Process)

서지정보

· 발행기관 : 중앙법학회
· 수록지 정보 : 중앙법학 / 15권 / 4호 / 173 ~ 211페이지
· 저자명 : 최옥환

초록

The surge in lending to households struggling borrowers debtor is growing. The legal response has been turned into a historical response. The Insolvency system in the past, initially seen as a punishment for the offender, or the deprivation of the rights in the civil law. The original purpose of the system is to economically aid a debtor that is a sincere, faithful but unfortunate person, but when we see some legal cases such as each court's sentencing which adjudicates a judgment of a conviction under a criminal charge, lower court's decision on the dismissal, and superior court's dismissal of appeal of a private rehabilitative petition, we can know that the crimes due to the untrustworthy debtor's moral laxity or hazard have been increasing gradually.
The court has paid attention to private personal(individual) financial workout system steadily, and has tried to settle this system by increasing human resource, complementing computer system, developing supporting program, etc. However, it seems that the moral hazard created by an immoral debtor who abuses this program, which can damage some creditors, is likely to reach up to the level of crime. Therefore, it is necessary that changing of external situation related to rehabilitative system should be studied firstly, and the primary problem associated with it must be researched, and then some solutions will be suggested.
Specific improvements include: First, the basic institutional issues should be solved. ① personal(individual) financial workout procedures available to private borrowers, whether to use personal bankruptcy proceedings, or whether the court process to use other credit recovery support system would allow the selection of debtor themselves should provide the necessary information. ② shall to avoid the moral hazard of the debtor.
Second, to solve the problem of operational system ① personal(individual) financial workout process and needs to be set by the processing method. The role of the judge and Standing Trustee ② Adjust the judge must be able to lead the personal(individual) financial workout) process. ③ External Standing Trustee operation of the initial members needs to be efficiently utilized. ④ in the debtor's principal office or place or office having jurisdiction over the debtor's premises to apply for a court case to make it personal regeneration and repair can be the judge. ⑤ organization and manpower of the court, you need to be expanded.
Third, in order to solve the problem of the law, ① income and debt should be investigated definitely. ② downturn in housing prices plunge by a lien on the disposal of the House to resolve difficult situations require answer to legislation. ③ need to the review of the collection of the guarantor. ④ the need of automatic stay system. Finally, the refer to the procedure for the discharge and the avoidance power.
The debtor that is the lack of ability to repay their debt solve the problem in Debtor Rehabilitation and Bankruptcy Law and Personal credit recovery system. Due to excessive debt from creditors under the pain of excessive debt collection, which stands for the economic relief to debtors as our personal recovery and the court of public institutions acknowledge the personal bankruptcy system.
Procedures which will utilize each person depending on the circumstances of the debtor carefully selected after determining that it would be desirable. In some cases, the cause of moral hazard as a means of avoiding the malicious misuse of debt may be possession. Thus, prior to liquidation personal bankruptcy for the debtor to the creditor and the debtor is trying to balance the legal and institutional improvements should be made. Though individual debtor to resolve debt through recovery and immunity, the both position should be to balance the need for management because of the loss of the creditor.

영어초록

The surge in lending to households struggling borrowers debtor is growing. The legal response has been turned into a historical response. The Insolvency system in the past, initially seen as a punishment for the offender, or the deprivation of the rights in the civil law. The original purpose of the system is to economically aid a debtor that is a sincere, faithful but unfortunate person, but when we see some legal cases such as each court's sentencing which adjudicates a judgment of a conviction under a criminal charge, lower court's decision on the dismissal, and superior court's dismissal of appeal of a private rehabilitative petition, we can know that the crimes due to the untrustworthy debtor's moral laxity or hazard have been increasing gradually.
The court has paid attention to private personal(individual) financial workout system steadily, and has tried to settle this system by increasing human resource, complementing computer system, developing supporting program, etc. However, it seems that the moral hazard created by an immoral debtor who abuses this program, which can damage some creditors, is likely to reach up to the level of crime. Therefore, it is necessary that changing of external situation related to rehabilitative system should be studied firstly, and the primary problem associated with it must be researched, and then some solutions will be suggested.
Specific improvements include: First, the basic institutional issues should be solved. ① personal(individual) financial workout procedures available to private borrowers, whether to use personal bankruptcy proceedings, or whether the court process to use other credit recovery support system would allow the selection of debtor themselves should provide the necessary information. ② shall to avoid the moral hazard of the debtor.
Second, to solve the problem of operational system ① personal(individual) financial workout process and needs to be set by the processing method. The role of the judge and Standing Trustee ② Adjust the judge must be able to lead the personal(individual) financial workout) process. ③ External Standing Trustee operation of the initial members needs to be efficiently utilized. ④ in the debtor's principal office or place or office having jurisdiction over the debtor's premises to apply for a court case to make it personal regeneration and repair can be the judge. ⑤ organization and manpower of the court, you need to be expanded.
Third, in order to solve the problem of the law, ① income and debt should be investigated definitely. ② downturn in housing prices plunge by a lien on the disposal of the House to resolve difficult situations require answer to legislation. ③ need to the review of the collection of the guarantor. ④ the need of automatic stay system. Finally, the refer to the procedure for the discharge and the avoidance power.
The debtor that is the lack of ability to repay their debt solve the problem in Debtor Rehabilitation and Bankruptcy Law and Personal credit recovery system. Due to excessive debt from creditors under the pain of excessive debt collection, which stands for the economic relief to debtors as our personal recovery and the court of public institutions acknowledge the personal bankruptcy system.
Procedures which will utilize each person depending on the circumstances of the debtor carefully selected after determining that it would be desirable. In some cases, the cause of moral hazard as a means of avoiding the malicious misuse of debt may be possession. Thus, prior to liquidation personal bankruptcy for the debtor to the creditor and the debtor is trying to balance the legal and institutional improvements should be made. Though individual debtor to resolve debt through recovery and immunity, the both position should be to balance the need for management because of the loss of the creditor.

참고자료

· 없음