「유럽의회와 유럽연합이사회의 2015년 5월 20일 도산절차에 관한 2015/848(EU) 규정(재구성)」에 관한 검토

「Council regulation (EC) No 1346/2000 on Insolvency Proceedings(hereinafter 'the former Regulation')」, adopted on 29 May 2000, has faced with many difficult problems including 'insolvency proceedings of a group of companies', 'forum shopping caused by the moving of Centre Of Main Interests(COMI) or the creation of the establishment', 'secondary insolvency proceedings which may also hamper the efficient administration of the insolvency estate', 'how to let relevant creditors and courts in another Member States know about information relating to the insolvency proceedings' for the last fifteen years, and a lot of insolvency cases, practices about these issues has led to a 「Regulation (EU) 2015/848 Of The European Parliament and Of The Council of 20 May 2015 on Insolvency Proceedings(recast) (hereinafter 'the Recast Regulation')」. The Recast Regulation will enter into force from 25 June 2015[except Article 86, Article 24(1) and Article 25], but it will applicable to relevant insolvency proceedings from 26 June 2017 according to the Article 84(Applicable in time), so we can't experience any insolvency proceedings relating to the Recast Regulation for the time being. In this regard, the Recital of the Recast Regulation would be very meaningful materials to help understand the objectives and reformative frames of the new insolvency system in European Union(except Denmark), because the Recital is intended to be used as a reference or a explanatory report by national authorities and legislative bodies when applying and interpreting or reviewing the adequacy of the Article of the Recast Regulation. Of course, the Recast Regulation does not directly apply to the insolvency proceedings which are opened in the Republic of Korea whether it is a main insolvency proceedings or not, since the Republic of Korea is not situated within the territory of Member States. However, the Recast Regulation will play a role as a criteria of interpretation when it comes to dealing with the cross-border insolvency proceedings covered by the Deptor Rehabilitation and Bankruptcy Act(hereinafter 'DRBA') of the Republic of Korea. This is because the DRBA was one of the national insolvency law of State that adopted the UNCITRAL Model Law on Cross-Border Insolvency(hereinafter 'Model Law'), which took into account the results of other international efforts, especially the former Regulation and is expected to consider the Recast Regulation. In short, the Recast Regulation which contains significant and substantial changes compared to the provisions of the former Regulation is likely to affect the Model Law, and the DRBA. Therefore, the author introduce the text of the Recast Regulation focusing on the Recital, and review it in comparison with the former Regulation, the Model Law and the DRBA.