국제도산과 담보권 - 2015 EU도산규정을 중심으로 -

In order to treat the insolvency of cross-border economic agents in an equitable manner based on a uniform standard, the international insolvency regulation aims at universalism and unity. Under universalism, if an insolvency proceeding is initiated in any country, it must have effect in other countries and its applicable law must be the lex concursus. Nevertheless it is inevitable to put certain restrictions on universalism under the sovereignty and legal system of each country. The same is true of the 2015 EU Insolvency Regulation (‘the 2015 EIR’) and the Model Law, however, the 2015 EIR based on the automatic approval system has a relatively stronger universalism than the Model Law. The issue of dealing with foreign security interests shows the conflict between universalism/lex concursus and its exception. If the universalism is adhered to, the lex concursus should be applied to the security interests located in countries other than the opening country of insolvency proceeding. However, there is a risk of seriously infringing on the trust and interests of creditors based on the lex situs, and further restricting the financial transactions of international actors. In the EU, the treatment of foreign security interests was discussed at the most important issue in the process of establishing the international insolvency regulation. The 2015 EIR is based on the fact that the insolvency proceeding initiated in a country in which the debtor’s COMI is recognized is the main proceeding, and the effect is given to other member states as well. But the Article 8(1) allows an exception that the opening of insolvency proceeding has no effect on foreign security interests. As a result, (s)he can exercise his or her own security interest and obtain the satisfaction of the claim without being subject to the lex concursus and the insolvency law of the country in which the object is located. The 2015 EIR has much to do with the legal interpretation in the Republic of Korea, which does not have explicit provisions in the Debtor Rehabilitation and Bankruptcy Act (‘DRBA’) and the Act on Private International Law. The courts have approved foreign insolvency proceeding based on domestic laws according to the DRBA. So it seems that the issues regarding the foreign security interests and the applicable law were not highlighted. In relation to the DRBA, I think that it is reasonable to interpret that neither the lex concursus nor the insolvency law of the lex situs applies to the foreign security interests as in the 2015 EIR. It is necessary to consider the essential characteristics of the DRBA adopted by modifying the Model Law.