다국적 기업집단의 도산에 관한 합리적 접근 방안 – ‘주된 이익의 중심지’ 결정을 중심으로 –

In case of international trade, of companies operating world-wide andan increasingly globalized economy, it is inevitable and an everyday factthat many reorganizations or insolvencies of multinational corporate groupsinvolve more than one jurisdiction. With numerous companies havinginterests spread throughout the globe, international insolvency legal systembecomes increasingly important. Until now, ‘EC Regulation on InsolvencyProceedings(EU Insolvency Regulation)’ and ‘UNCITRAL Model Law onCross-Border Insolvency(Model Law)’ are applied to deal with internationalinsolvency cases. However, both EU Insolvency Regulation and Model Law offer no rulefor groups of affiliated companies. In short, there is no general rule to openor to consolidate insolvency proceedings against any of corporate groupsand thus we rely on court decisions. Through lack of one clear definitionof international jurisdiction, almost all current decisions of the courts regardingcross-border insolvency cases focus on the determination of the concept‘center of main interests(COMI)’. European courts and Court of Justice ofthe European Union have set out several tests(e.g. head office functions,Eurofood approach, Standford approach). Recently the European Commission proposed the Revision of the EUInsolvency Regulation on the basis of the Interedil case. In our case, the Act on Rehabilitation and Bankruptcy of Debtor(so-called the ConsolidatedInsolvency Act) does not regulate the concept ‘COMI’ to determine whichcountry’s courts have jurisdiction. Therefore it is necessary to establish andadopt the unified definition of the concept ‘COMI’ to ensure legal certaintyand foreseeability by third parties.