도산관련사건의 국제재판관할에 관한 유럽도산법의 발전과 그 교훈

Vis attractiva over ancillary actions in EIR

The purpose of this paper is to describe the jurisdiction criteria for “ancillary actions” laid down by Article 6 of the European Insolvency Regulation(“EIR”) and to analyze some of problems raised by their practical application. It also includes specific references to the Commission s Proposal amending the current text (the “Commission s Proposal”, COM (2012) 744 final) and the Recital of the EIR. Regulation 2015/848 to great extent codified the Court of Justice’s case law in matters of actions which derives directly from the insolvency proceedings and is closely linked with them. Article 6 EIR contains new provisions according to which the receiver is expressly entitled to bring avoiding actions along with other connected actions, against the same defendants, so that the receiver can bring the avoiding action before the Courts of a Member State having jurisdiction in civil and commercial matters pursuant to Regulation No. 1215/2012 for such connected actions. This leads to the result, that when the defendant in an action brought by the receiver is domiciled in another Member State, the Courts of the Member State where the insolvency procedure was commenced are competent to hear the case. This thesis proposes that such a vis attractiva over “ancillary” proceedings be implemented in Korean insolvency law. Moreover the author analyzes the effects from the practical application raised by the case law of the European Court of Justice(“ECJ”). In the case Schmid (C-382/12) the ECJ ruled that the Regulation applies to an avoiding or claw-back action brought by the insolvency receiver. even when the domicile of the defendant lies in a non-Member State. In this respect this essay has analysed whether it should be the domestic law of another State to be applied (and not the Regulation) in order to determine which Courts have jurisdiction.