외국도산절차의 승인에 관한 모델법과 EU규정의 비교: 한진해운 사건을 계기로

The insolvency of Hanjin Shipping Co., Ltd. (“Hanjin Shipping”), ranked 10th worldwide and first nationwide in 2015, is the largest insolvency case among those which affected Korean shipping companies. Following the insolvency of a series of Korean shipping companies, various maritime law and insolvency law issues were raised, but the discussions in terms of international insolvency law have been insufficient. In the past, the author discussed abstractly the differences between international insolvency law regimes when proposing Korea’s adoption of the 1997 UNCITRAL Model Law on Cross-Border Insolvency. In this article, after comparing the Model Law regime with the EU law regime, the author discusses more concrete issues raised in the Hanjin Shipping case, namely whether the creditors could enforce their maritime lien over Hanjin Shipping’s Bareboat Charter Hire Purchase (BBCHP) Vessel in foreign countries (after the recognition of the Korean judgment opening the rehabilitation proceeding) and in Korea. This is a matter of characterization of BBCHP in the rehabilitation proceeding and the effect of the recognition in foreign countries of the Korean insolvency proceedings. The order of discussion is as follows: first, a comparison of major international insolvency law regimes regarding the recognition of foreign insolvency proceedings (especially foreign main proceedings) (Chapter II); second, a review of the progress of the Hanjin Shipping insolvency proceedings and an overview of the BBCHP (Chapter III), followed by an analysis of the external effects (Chapter IV) and of the domestic effects of the Korean rehabilitation proceedings (the issue of enforcement in Korea in the Hanjin BBCHP Vessel); and finally a study on the recognition and the recognition route in Korea of the U.S. bankruptcy court’s approval of the reorganization plan in the Todd Oh Case (Chapter VI). The Todd Oh case, although unrelated to the Hanjin Shipping case, is worth reviewing here as there is a Supreme Court ruling on the subject of recognition. The insolvency of a series of Korean shipping companies showed the importance of cooperation in international insolvency. In order to prevent forced execution with regard to the Hanjin BBCHP Vessel, the insolvency representative of Hanjin Shipping had to submit, immediately after the Korean judgment opening the rehabilitation proceeding, applications in various foreign countries for recognition orders and stay orders. Unlike the authorities of Japan and Germany, the US bankruptcy court issued an extensive stay order, which translates its active attitude towards foreign proceedings. However, there is also strong criticism against the same court, arguing that it ignored the characteristics of maritime lien and maritime law. The Hanjin Shipping case reflects the various differences between international insolvency law regimes. Their comparison allows to identify the pros and cons of each regime and provides insight into how a given regime may be improved. This is precisely the importance of comparative international insolvency law.