하드쉽면책(Hardship Discharge)

초록

The aim of this paper is to grasp legal principles of hardship discharge in individual rehabilitation proceedings. In individual rehabilitation proceedings, even if a debtor fails to fulfill the repayment plan, he still can get hardship discharge. According to Article 624(2) of Debtor Rehabilitation and Bankruptcy Act(“DRBA”), in order for a debtor to get hardship discharge, (1) failure to complete payments must be due to circumstances for which he should not justly be held accountable, (2) each unsecured creditor must have received equivalent of distribution in bankruptcy case, (3) modification of the plan is not practicable. This paper gathered and analyzed lower court cases dealing with requirement (1) and reviewed current law and theories of modification of plan after confirmation, which is closely related to requirement (3). Under current law, courts can dismiss hardship discharge petition even when all the requirements above are met. This discretion may throw heavy burden on courts and uncertainty on debtors, so it is wise to revise current DRBA to eliminate this discretion. Currently hardship discharge is almost neglected by courts and debtors. This paper advised that courts should use hardship discharge more actively, while keeping valance between hardship discharge and modification of plan. This paper also introduced undue hardship discharge of the Bankruptcy Code of the United States, which is related to student loans.

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