개인회생채권조사확정절차의 개선방안에 대한 연구

초록

investigation and fixation of claims in individual rehabilitation proceedings is different from that of rehabilitation proceedings/bankruptcy proceedings. It is because that DRBA, to expedite speed, replaces submission of proof of claims (by creditors) with submission of list of creditors (by the debtor) and mandates a creditor, when dissatisfied with content of list of creditors, to both raise an objection and file a petition for claim fixation within the objection period. Under current DRBA, standing to sue and to be sued for claim fixation decision is improperly set forth and a creditor cannot make fully informed decision when he raises objection to other creditors’ claims because he cannot know correct amount other creditors, during objection period. Current DRBA is also silent on important issues such as who should be defendant when a party files an action to oppose to a claim fixation decision; what process should be done when an objected claim is accompanied by an enforceable title of obligation or final judgment and who should take responsibility to initiate the process. To be realistic, it is too difficult to figure out interpretations and minor amendments to fix all the problems, while maintaining the main structure of current investigation and fixation of claims procedure in individual rehabilitation proceedings. Because current DRBA built the procedure omitting submission of proof of claims, which cannot be missed to ensure equality and to protect the right to trial and due process. So there should be an amendment of DRBA which will introduce submission of proof of claims by creditors and make the procedure for investigation and fixation of claims in individual rehabilitation have the same structure as that of rehabilitation proceedings/bankruptcy proceedings. As for expedition of speed, there are other solutions such as shortening related periods and simplifying object of investigation and fixation.

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