환경책임과 도산절차(環境責任과 倒産節次)

One of the fundamental principle of environmental law is “polluter should pay”. On the other hand, all creditors should be fairly and equitably treated and the “fresh start” policy is paramount in bankruptcy law. If a debtor dumps waste on her land and filed a bankruptcy procedure without cleaning up the land, the two principles are in conflict with each other. In this Article, the author tries to guide the readers through the various stages of bankruptcy procedure to suggest a more reasonable interpretation of the Korean bankruptcy code on this matter. First, the environmental claims should be treated as bankruptcy claims when the essential components of the claim arose before the filing. Moreover, if the expenditure of the bankruptcy estate does not improve the value of the property, it should not be treated as “adnmistrative claims.” Second, if the environment claims are pre-petiton, they should be discharged in the bankruptcy proceedings. Korean bankruptcy code provides exceptions to the rule that all pre-petion claims should be discharged unless the plan says otherwise, but the environment claims does not fall in that category of exceptions. Third, the trustee’s right to abandon the burdensome property from the estate should not be overly limited because it serves the purpose of the bankruptcy proceedings. Unless the environmental hazard poses imminent harm to public, the bankruptcy trustee may decide whether she abandon the property burdened with environmental liabilities.