법인파산절차 남용에 관한 연구 - 판례의 동향, 일본의 연구와 판례, 권리남용금지원칙에 기초하여 -

According to article 309 (2) of Debtor Rehabilitation and Bankruptcy Act, abuse of bankruptcy procedure is one of the reasons for the court to dismiss bankruptcy petition. In Korea, however, few studies have been conducted on this issue, especially on corporate bankruptcy procedure. The trends of the court rulings on personal bankruptcy and corporate bankruptcy cases should be discussed. In Japan, relatively many researches have already been conducted on the theme of abuse of bankruptcy petition, and there are quite a few precedents. Also, article 30 (1) 2) of Japan’s revised Bankruptcy Act is understood as the provision on the theme. Considering the similarities between Korean and Japanese bankruptcy procedure, we need to examine this provision and the precedents. However, Japanese legislation and research are too biased towards intentional elements. Because abuse of bankruptcy procedure is an abuse of right, it is necessary to review the requirements on the prohibition on abuse of right in civil code and apply them to abuse of bankruptcy procedure. The subject element of the abuse, the intention of doing harm, is better to be regarded as one of the considerations of judgment rather than as a discrete requirement independent from the following objective elements: all matters concerning the claim, financial status of the debtor, type and degree of the cause of bankruptcy, intentions of the parties including the purpose of petition, alternatives to bankruptcy procedure, attitudes and behaviors shown by the parties before and after petition, influence on public area, decision on previous bankruptcy case. The objective elements are to be considered altogether to find a balance in a conflict of interests. Furthermore, article 309 (2) should be clearly distinguished from article 309 (1) 5), and various measures can be considered to prevent abuse of bankruptcy procedure.