UNCITRAL 국제도산에 관한 모델법 상의 주된 이익의 중심(COMI) 개념

Chapter 5 of the Debtor Rehabilitation and Bankruptcy Act (DRBA), anew unified insolvency act, enacted on April 1, 2006 is deemed to haveadopted the UNCITRAL Model Law on Cross-Border Insolvency inKorea. The old three insolvency acts, the Corporate Reorganization Act, theComposition Act and the Bankruptcy Act took the view of territorialism. Territorialism is the approach that an insolvency case should be usedonly to administer the domestic assets of a debtor who runs businesscrossing the border under the domestic law for the benefit of domesticcreditors. In contrast, the universalistic approach is the view thatrecognizes one main insolvency case for a multinational debtor thatwould administer all of the debtor's assets worldwide. Even though the DRBA introduced the recognition of the insolvencyproceeding pending in a foreign State, it does not differentiate a foreignmain proceeding from a foreign non-main proceeding. Consequently, theconcept of the debtor's centre of main interests (COMI) which is at thecore of a foreign main proceeding was not introduced to the DRBA. Thisapproach is not consistent with the international trend towardsuniversalism that foreign insolvency proceedings can be categorized asmain and non-main proceedings and might not provide the sufficientdegree of certainty and foreseeability for the parties in interest in the proceedings. If there is a key criterion for categorizing foreign insolvencyproceedings as main and non-main proceedings, it will facilitate theprompt recognition and relief, therefore prevent the dissipation of thedebtor's assets, and maximize the benefit of the interested parties. It is needed to review how to define foreign main and non-mainproceedings in the DRBA and whether to introduce the presumption ofCOMI as well in the future.