미국과 한국의 도산법제의 비교법적 검토 = A Comparative Legal Study of U.S. Bankruptcy Law and Korean Insolvency Law

다국어 초록 (Multilingual Abstract)

The U.S. Bankruptcy Code systematically integrates proceduralism and traditionalism, achieving the world's highest corporate reorganization success rate. Thomas H. Jackson's proceduralism (creditors' bargain) realizes efficient resource allocation through the automatic stay (Section 362), preferential transfer avoidance (Section 547), and business purpose asset sales (Section 363(b)). Concurrently, Elizabeth Warren's traditionalism (mitigating negative externalities) supports debtor rehabilitation via the “fresh start” principle, reinforced by discharge injunctions (Section 524), exemptions (Section 522), and means testing (Section 707(b)).
This study examines how these two theories are integrated and operationalized in the 1978 Bankruptcy Code, focusing on the debtor-in-possession (DIP, Section 1107) regime and Chapter 11 plan confirmation (Section 1129). It critically reviews structural limitations in Korea's Debtor Rehabilitation and Bankruptcy Act—mandatory trustee appointments (Article 299) and restrictive asset dispositions (Article 621). Contrasting GM/Chrysler (successful Section 363(b) emergency sales) with Hanbo Steel (2000Da3932, failed consensus leading to liquidation), the analysis demonstrates that a 70% proceduralism–30% traditionalism balance is key to reorganization success.
Comparing 2023 AOUSC statistics (Chapter 11 success rate 70%) with Korean Ministry of Justice data (corporate rehabilitation 28%), the study identifies institutional gaps and proposes reforms: (1) elective DIP under Article 299, (2) Article 621 liberalization with “sound business purpose” standard and 14-day approval, and (3) Article 584 fresh start discharge incorporating means testing and Brunner test. These aim to elevate rehabilitation success to 60%, creditor recovery to 45%, and GDP contribution by 25 trillion KRW, establishing a sustainable bankruptcy framework.