개인회생절차의 가용소득투입의 원칙과 최저변제액제공의 원칙에 대한 비교법적 검토

초록

When a court confirms an individual rehabilitation plan, regarding the amount of payments to unsecured creditors, it should examine that the plan satisfies three requirements according to the current Debtor Rehabilitation and Bankruptcy Act(“the DRBA”): The best interests of creditors test, the disposable income test and the minimum amount test. The disposable income test of the DRBA is problematic in that it mandates debtors to put all of disposable income into payments for unsecured creditors, thus leaves debtors no ability to pay debts that are secured by assets necessary to run business or houses to live in. Under the DRBA, individual rehabilitation proceedings cannot facilitate rehabilitation of debtors who have secured debts due to the disposable income test. the Chapter 13 of the U.S. also has the disposable income test, but it recognizes payments to secured creditors to be deducted in calculating disposable income. So the chapter 13 does not have the above described problem. Japanese individual rehabilitation proceedings also has the disposable income test, but it requires only 2/3 of disposable income to be paid to unsecured creditors. So the Japanese system leaves debtors some ability to deal with secured creditors. The DRBA adopted the minimum amount test to protect unsecured creditors and to reserve judicial resources when the amount of payment provided by plans is too low. Though the policy choice of the DRBA can be endorsed, the current number of the minimum amount set in the DRBA is too low to achieve the above manifested policy goal. Especially so, when we take into the reality that there is uncertainty in calculation of disposable income, especially of a debtor who runs a business. When a court confirms an individual rehabilitation plan, regarding the amount of payments to unsecured creditors, it should examine that the plan satisfies three requirements according to the current Debtor Rehabilitation and Bankruptcy Act(“the DRBA”): The best interests of creditors test, the disposable income test and the minimum amount test. The disposable income test of the DRBA is problematic in that it mandates debtors to put all of disposable income into payments for unsecured creditors, thus leaves debtors no ability to pay debts that are secured by assets necessary to run business or houses to live in. Under the DRBA, individual rehabilitation proceedings cannot facilitate rehabilitation of debtors who have secured debts due to the disposable income test. The Chapter 13 of the U.S. also has the disposable income test, but it recognizes payments to secured creditors to be deducted in calculating disposable income. So the chapter 13 does not have the above described problem. Japanese individual rehabilitation proceedings also has the disposable income test, but it requires only 2/3 of disposable income to be paid to unsecured creditors. So the Japanese system leaves debtors some ability to deal with secured creditors. The DRBA adopted the minimum amount test to protect unsecured creditors and to reserve judicial resources when the amount of payment provided by plans is too low. Though the policy choice of the DRBA can be endorsed, the current number of the minimum amount set in the DRBA is too low to achieve the above manifested policy goal. Especially so, when we take into the reality that there is uncertainty in calculation of disposable income, especially of a debtor who runs a business.

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