회생절차개시 전 채무자 재산보전방안에 관한 연구 -자동중지제도의 도입을 중심으로-

Although the Debtor Rehabilitation and Bankruptcy Act, executed from 1 April 2006, bears significance in terms of the consolidation of many bankruptcy laws into a single system, it still has many weaknesses compared to that of advanced nations, such as separation of the application procedure and insufficient connection between the procedures. Moreover, the biggest problem in the bankruptcy procedure of the Republic of Korea is that the process of rehabilitation is delayed due to the unreasonable relationship between the rehabilitation procedure and the civil execution procedure, which fails to support the efficient rehabilitation of the debtor. Accordingly, for this reason, many debtors are losing the right time to rehabilitate. For instance, while a company with little possibility of rehabilitation should be ousted as soon as possible to prevent the chain of bankruptcy, the bankruptcy procedure places excessive restraint on the civil execution procedure, preventing the Debtor Rehabilitation and Bankruptcy Act from functioning well. As a result, corporate weakness may lead to a financial crisis, triggering a vicious circle of injection of government funds, aggravating the national economy. In the rehabilitation procedure of the Debtor Rehabilitation and Bankruptcy Act, there are Preservative Measure, Stay Order and Bankruptcy Court Order of Comprehensive Prohibition to make new execution from the rehabilitation bond and rehabilitation mortgage prohibited and suspended. However, the creditor, whose civil execution is suspended by the rehabilitation procedure, should have the right to apply for the suspension of the civil execution procedure to properly protect the creditor. This currently is not the case. Specially, Bankruptcy Court Order of Comprehensive Prohibition, introduced from Civil Rehabilitation Act by Japan, has its limits to execute it just with the Stay Order even though it has merits to get rid of the complexity of the inefficient procedures. The rehabilitation procedure does not give any rehabilitation favor to the debtor but only provides the time for the debtor to rehabilitate on its own. Therefore, it should be considered to introduce not Bankruptcy Court Order of Comprehensive Prohibition but U.S. Automatic Stay to preserve debtors property. However, as the bankruptcy procedure as an exception to the civil execution procedure is likely to cause various problems and disorder, undermining the existing civil execution, the creditor's standpoint shall not be overlooked.