도산 관련 재판의 승인 및 집행에 관한 2018년 UNCITRAL 모델법과 채무자회생법에의 수용 방안

The UNCITRAL Model Law on Recognition and Enforcement of Insolvency Related Judgments, adopted in July 2018(‘the 2018 Model Law’), is a work for UNCITRAL to supplement and improve the Model Law on Cross-Border Insolvency. It is an inevitable task to review how to regulate it in the domestic law, if the Republic of Korea, which accepted the 1997 Model Law on Cross-Border Insolvency, decides whether to accept the 2018 Model Law from the viewpoint of international coherence. The 2018 Model Law is valuable, among other things, in that it removed the ambiguity of the 1997 Model Law by making the decision commencing the insolvency proceeding. The 2018 Model Law applies to recognition and enforcement of insolvency-related judgments in countries other than ones that accept it, recognizing countries, and specifies the types of insolvency-related judgment. The insolvency-related judgment is governed by a jurisprudence of recognition different from a general civil trial. Therefore, if the cause of the claim or the core of the dispute is based on the insolvency law or principles specific of the insolvency law, it will be regarded as an insolvency-related judgment. There is controversy over whether the legal nature of recognition under the 2018 Model Law is automatic or decisive recognition, it would be appropriate to consider it the former, but to harmoniously interpret regulations that conflict with this. The Supreme Court 2009Ma1600 decision ruled that the US Bankruptcy Court's decision to authorize the rehabilitation plan was subject to recognition under the Article 217 of the Civil Procedure Act. However, since this is an insolvency-related judgment, it will be subject to the relief under the Debtor Rehabilitation and Bankruptcy Act(‘the DRBA’), and if the 2018 Model Law is accepted, it should be reviewed. It is necessary not only to review the main content of the 2018 Model Law but also to comprehensively examine the cross-border insolvency provisions and legal concepts under the DRBA in line with the flow of the Universalism centered on COMI.