채무재승인약정

초록

Reaffirmation agreements are agreements between debtors and creditors in which debtors promise to pay the debts that are going to be discharged or were already discharged in bankruptcy proceedings. Reaffirmation agreements, if unrestrained, pose a serious threat to the fresh start of individual debtors. In the United States, there were no clause regulating reaffirmation agreements in the Bankruptcy Act from the onset, and in most cases the court upheld the validity of reaffirmation agreements. But pervasive abuse of reaffirmation agreements by creditors drew attention of the Congress, subsections including 11 U.S.C. 524(c) was added to Bankruptcy Code to regulate the content and formality of reaffirmation Agreements. Japan does not have any statutes regarding reaffirmation agreements, but there were 2 case laws of lower level courts that negated the validity of reaffirmation agreements. One is related to reaffirmation agreements that were entered before the discharge, and the other is related to reaffirmation agreements that were entered after the discharge. In Korea, reaffirmation agreements has seldom been a topic of scholars or practitioners so far, but there were 2 lower level court case laws that are of the same conclusion with the above Japanese case laws. Taking the legislative history and academic and social debates of the United Sates and Japan, the right direction to regulate reaffirmation agreements is to deny the validity of reaffirmation agreements of unsecured debts and to recognize the validity of reaffirmation agreements of secured debts partially, that is to say, only up to the amount of value of the collateral.

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