개인파산절차와 개인회생절차 사이의 적정한 역할 분담을 위한 방안의 검토

In Korea, most of the individual insolvency cases are either Individual Bankruptcy cases or Individual Rehabilitation cases. When we look at Individual Bankruptcy procedure or Individual Rehabilitation procedure separately, there are ways for no-income-no-asset debtors or low-income-low-asset debtors to use individual insolvency procedures. However, when we look at individual insolvency system as a whole, there are many cases in which relief for debtors who might get a fresh start expeditiously is delayed and substantive accessibility of no-income-no-asset debtors or low-income-low-asset debtors to insolvency system is weakened due to the lack of the appropriate division of roles between Individual Bankruptcy procedure or Individual Rehabilitation procedure. Particularly, there are many cases where debtors with substantively no disposable income or no regular income file for Individual Rehabilitation procedure. These debtors are prone to undergo difficulties in paying debts according to the plan and consequently to file for Individual Bankruptcy procedure again. As a result, the fresh start of debtors would be delayed, and courts would also experience inefficiency and burden of handling two cases for one debtor. In this context, there is a need to find practical and legislative ways to allow debtors who filed for Individual Rehabilitation procedure but are more suitable to Individual Bankruptcy procedure to convert to Individual Bankruptcy procedure. Meanwhile, if a debtor who had substantive disposable income have been making payments according to a plan, making payments could be difficult in the middle of the duration of the plan due to the unanticipated circumstances such as loss of job or disease. To cope with these circumstances inside the Individual Rehabilitation procedure, there are some devices like modification of plan or hardship discharge. However, the number of cases that hardship discharge is used is relatively rare. In this regard, we need to examine whether this kind of rare usage of hardship discharge have forced debtors who could use hardship discharge to actually file for Individual Bankruptcy procedure again. In addition, regarding to increasing the role of Individual Rehabilitation procedure, there has been no change for the debt limit of Individual Rehabilitation procedure for a long period of time. Therefore, the review for possibility of increasing the debt limit is necessary.