IRJ 모델법과 외국도산절차에서 내려진 면책재판의 승인－대법원 2009마1600 결정 및 그에 따른 하급심 실무동향을 중심으로－

The UNCITRAL adopted the CBI Model Law in 1997 and established the current Cross-Border Insolvency Practice, but the CBI Model Law did not express a clear position on what foreign proceedings mean and how far relief can cover, which caused conflicts of practice over the scope of CBI Model Law. The U.S. interpreted the scope very widely whereas the U.K. took a narrow stance in applying the CBI Model Law based on traditional laws such as Gibbs Rule and Dicey Rule. The UNCITRAL resolved this problem by newly enacting the IRJ Model Law in 2018, which established a smooth procedure for the recognition and enforcement of Insolvency-Related Judgments constituting a foreign proceeding instead of the proceeding itself. Meanwhile the UNCITRAL pointed out the 2009-Ma-1600 decision rendered by the Supreme Court of Korea as against the Universalism and goal of Cross-Border Insolvency, along with the Rubin Case. The bigger problem is that lower courts in South Korea have misunderstood the meaning of the Supreme Court decision one more step further. Although the 2009-Ma-1600 decision above is open to criticism, it is possible to accept and understand the conclusion, considering the necessity to protect the expectation of the debtor who trusted the Territorialism under the former Law. However, the lower courts misunderstood that the Supreme Court of Korea declared that a passive stance should be taken on the recognition of discharge order rendered in foreign bankruptcy proceedings, which has formed a practice trend against the Universalism. This is obvious return to the Territorialism, thus the change is desperately needed. Eventually the most fundamental solution would be to accept the IRJ Model Act and revise the Debtor Rehabilitation and Bankruptcy Act (DRBA) to improve the practice that has been unclear under the CBI Model Law. In the future, it is also necessary to operate the IRJ Model Law in harmony with the C BI model Law.