기업회생절차에서 법원의 역할에 대한 입법론적 검토

The Role of Court in the Reorganization Procedure:A Proposal

Korean bankruptcy judges’ workload is notorious among the judges, coounselors and other experts of bankruptcy law. Moreover, there has been no clear rule on the proper assignment of cases regarding the claim determination process or avoidance of fraudulent transactions. The author argues that these problems could be solved by proper distribution of works betweeen the judges and non-judge officials. The author also suggests that the judges should not be involved with managerial tasks such as counseling the trustees(DIP-type trustees as well) because it could hurt the appearance of fairness in cases where the parties in interest would confront each other. For these arguments, the author first surveys the existing scheme of work division in reorganization cases. Then he suggests that the new post called bankruptcy manager should be installed, who mainly are responsible for the managerial jobs in the reorganization procedure. If the bankruptcy managers handles most of the managerial and non-judicial jobs, then the judges could concentrate their energe on the judicial tasks. Although new law would be needed for the suggested system, the author indicates that the problem could be (although incompletely) addressed under the current system. The judges should avoid any ex parte contact, and the court shoud set up proper rules for work division regarding the claim determination process or avoidance of fraudulent transactions.