외국파산절차의 승인 및 지원

Cross-border insolvency, universality, territoriality, concurrent proceedings, judicial cooperation

Cross-border insolvency proceedings frequently result in competing interests among the jurisdictions involved. The two dominant models for addressing international insolvency problems are universality and territoriality. Under the territoriality approach, each nation conducts its own insolvency proceeding with respect to the assets located within its jurisdiction and disregards any parallel proceedings in a foreign nation. Under the universality approach, an international insolvency case is treated, insofar as possible, as a single case and the creditors treated equally wherever they might be located. Japanese and Korean Insolvency Acts took a strict territorialism. This tended be disadvantaged where assets have been dissipated or transferred out of the jurisdiction. Therefore, the courts of Japan and Korea had mitigated the strictness of the Acts. Recently Japan and Korea abandoned territorialism by establishing new laws; The Act on Recognition and Relief of Foreign Insolvency Proceedings of Japan (hereinafter referred to as the “Recognition Act”) and the Debtor Rehabilitation and Bankruptcy Act of Korea (hereinafter referred to as the “unified Insolvency Act”). They are positioned between Territoriality and Universality. The Recognition Act adopts the principle of “one debtor, one proceeding” while the unified Insolvency Act admits concurrent proceedings. Judicial cooperation as well as legislation plays an important role in cross border insolvency proceeding. Each courts and representatives have to endeavor to raise the confidence of foreign courts and representatives in the fairness of the insolvency system.