주택담보대출채권과 별제권의 배제

Several bills, which adopt special measures to limit, subject to certain conditions precedent, the rights of separation granted to residential mortgage loans in individuals rehabilitation proceedings under the Debtor Rehabilitation and Bankruptcy Law (“DRBL”), are currently pending before the National Assembly. In this article, the author has performed comparative review of the insolvency legislation and practices of the United States and Japan which have individuals rehabilitation proceedings similar to those of Korea and has made proposals on desirable improvements to the Korean insolvency regimes. Under the DRBL, residential mortgages loans are repaid by foreclosure on the mortgages, which will inevitably result in the loss of the debtor’s principal residence and jeopardize the rehabilitation of the debtor. Therefore, in order to address such problem, it is necessary to introduce special measures which limit the rights to foreclose on residential mortgages in individual rehabilitation proceedings if and when such measures are requested by the debtor and there is substantial likelihood of successful rehabilitation. Such measures would also be helpful in mitigating any adverse impact on markets and financial system which may be brought out due to unexpected global or internal financial crisis. This article has discussed a number of methods for such measures along with the analysis of related legal issues. How and to what extent such measures may be adopted, however, would ultimately depend upon a policy decision following careful balancing of the public interests to protect through such measures and the burden which would be imposed on the creditors holding residential mortgage loan claims.