도산법제와 해사법제가 충돌하는 경우에 법원 간의 공조를 통한 해결방안에 관한 검토

When an insolvency proceeding is pending for a debtor who operates ships globally, there could be a collision between insolvency law and maritime law. Under insolvency law, creditors enforce their claims collectively. On the other hand, maritime law emphasizes remedy for individual creditors. Currently, outcomes for this kind of collision are influenced by the order of the commencement of insolvency proceeding which is a main proceeding, recognition of the insolvency proceeding, and arrest or attachment of the debtor’s ship. Such outcomes may result in economically inefficient and capricious results. Meanwhile, countries have continued their efforts to strengthen cooperation with regard to insolvency proceedings. Accordingly, many countries adopted the UNCITRAL Model Law on Cross-Border Insolvency, and cross-border insolvency agreements were used in many cases. In addition, courts in different jurisdictions recently started to form guidelines regarding cooperation in insolvency cases. Against this backdrop, with respect to the problem of collision between insolvency and maritime law, several solutions based on the possibility of cooperation among courts have been suggested. One of these solutions is based on reciprocal comity, under which the court in arresting country entrusts the seized ship to the foreign representative and the court overseeing the foreign proceeding recognizes the priorities of maritime creditors including maritime lienholders that could have been accorded in the arresting country. Another solution is, while basically agreeing to the solution of reciprocal comity, about using synthetic proceedings. Under this solution, the arresting court remits the sale proceeds of the debtor’s ship, and the court of the foreign proceeding distributes the proceeds to the secured creditors of arresting country as if it were applying the law of arresting country. In this regard, whether using synthetic proceedings are possible or not is arguable in Korea under current law, but there might be a way to interpret the current law to give an effect similar to using synthetic proceedings. Moreover, the solution using synthetic proceedings presumes the sale of debtor’s ship, but when the debtor is a shipping company and in some kind of rehabilitation proceeding, it would want to lift the arrest and operate the ship to reduce impact on its business. Cross-border insolvency agreements can be used in this context.