Earticle

초록

영어

The lienholder in the individual rehabilitation proceeding can freely exercise the lien due to the fundamental guarantee of the right of rehabilitation. Some limitations are, however, exerted for the resuscitation of individual debtors: First, when the court acknowledges the need in case of requests for the initiation of the individual rehabilitation proceeding, the court may order suspension or prohibition of the auction for exercising the right of rehabilitation about the debtor's business or asset, with the request by the parties of interest or with the court's authority, until the determination about the request for initiation of the individual rehabilitation proceeding. Second, upon the verdict for the initiation of the individual rehabilitation proceeding, the auction for the exercise of the right of rehabilitation with the asset of individual rehabilitation organizations automatically suspends or is prohibited until the approved termination day for the rehabilitation plan. Accordingly, the lienholder is a right holder for rehabilitation in the individual rehabilitation proceeding however, a predicament is the impossibility of the right exercise from the time of the individual rehabilitation proceeding until the verdict for the rehabilitation plan. Noticeably, more unreasonable contents have incremented in the right of rehabilitation for debtors as copying the civil rehabilitation right of Japan. The broad restraining order system according to the civil rehabilitation law of Japan is a system that, for instance, orders the prohibition of compulsory execution for the asset of recovering debtor that exerts on the rehabilitation debt of recovering debtor, whereas Korea's broad restraining order system extended its range of prohibition of, for instance, compulsory execution of rehabilitation bond or rehabilitation lien even about the rehabilitation debtor as well as rehabilitation lienholder. Furthermore, the restraining order system of Japan sets a long period of time and orders the suspension of auction for the lien exercise in the asset of rehabilitating debtor. On the other hand, Korea's restraining order may request suspension or prohibition of the auction for the lien exercise in the debtor's business or asset, until the determination time for the initiation request for the individual rehabilitation proceeding, and when a verdict is stated for the initiation of the individual rehabilitation proceeding, the auction for the lien exercise for the asset belonging to individual rehabilitation organizations automatically suspends or is prohibited until the approved termination day for the rehabilitation plan. Moreover, Japanese law stipulates the court for a hearing by the auction declarant when making a verdict for suspension, Korean law, however, omits the process. Under such circumstances, the allegation for the exclusion of the lien out of the right for rehabilitation, by financial institutes on the housing owned by the debtor who requested for the individual rehabilitation proceeding can worsen justice and equality.

목차

I. 서론
 II. 별제권자로서의 지위
  1. 별제권의 개념
  2. 파산절차상 별제권의 원용
 III. 개인회생절차상 권리행사의 제한
  1. 권리행사제한의 필요성
  2. 개시결정권 권리행사의 제한
  3. 개시결정에 의한 권리행사의 제한
  4. 일본 민사재생법의 계수
 IV. 개인회생절차상 다른 권리의 행사
  1. 상계권의 행사
  2. 청산가치보장 여부
  3. 환취권의 행사
  4. 주택담보채권에 관한 별제권배제 논의
 V. 결론
 참고문헌
 Abstract

키워드

채무자회생법(채무자회생 및 파산에 관한 법률) 개인회생 절차 담보권 기업회생절차 파산절차 별제권자 일본 민사재생법 중지명령 포괄적 금지명령 개시결정 변제계획 회생계획 Debtor Rehabilitation Law(Debtor Rehabilitation and Bankruptcy Law) individual rehabilitation proceeding lien company rehabilitation proceeding bankruptcy proceeding the right holder for rehabilitation Civil Rehabilitation Law of Japan suspension verdict extensive prohibition verdict initiation verdict pay plan rehabilitation plan

저자

• 박승두 [ Park, Seung-Du | 청주대학교 법과대학 교수, 법학박사 ]

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