개인파산에 있어서 신용상담제도 도입의 필요성 = Necessity to Adopt the Credit Counseling for Debtor"s Rehabilitation

다국어 초록 (Multilingual Abstract)

  On Sept. 23rd, 2004, the new Korean ‘the Act on Debtor"s Rehabilitation and Bankruptcy" was newly modified in order to solve the problems caused by the previous Act on Bankruptcy. However, it unlikely includes any kind of aids to help debtors to walk through the process in filing for bankruptcy so it often tends to lead the uneducated debtors to use the bankruptcy as an escape rather than a last resort for their economic crisis. In order to prevent the abusive use of filing for bankruptcy, the United States"s law makers already introduced ‘credit counseling" in ‘the Bankruptcy Abuse and Consumer Protection Act of 2005". ‘Credit counseling" is to require a debtor to be counseled respect to his financial situation and consequence of filing for bankruptcy before filing it. This paper mainly discusses the necessity of ‘credit counseling" process in Korean bankruptcy law, practice of credit counseling in the U.S. and finally its application to Korean bankruptcy law.<BR>  Firstly, why Korean bankruptcy law should adopt the ‘credit counseling", since: ① Debtors can be aware of any other alternatives to bankruptcy, ② Debtors can use this counseling to financially rehabilitate himself, ③ By preventing the abuse of bankruptcy, it reduces the loss on social costs. Secondly, the practice of the credit counseling in the U.S. is; ① What? When a debtor files for bankruptcy, he or she has to get briefing that outlined the opportunities for available credit counseling and assisting in performing a related budget analysis. ② Where? When a debtor gets such counseling, he or she should get it in an approved nonprofit budget and credit counseling agency. ③ When? 180 days before a debtor files for bankruptcy. Nextly, the credit counseling in the U.S. has caused the following problems; ① When a debtor receives any advices from credit counselor, even though the issues addressed by the counselor involves legal aspect of the debtor"s financial situation but the counselors are not legal professionals, ② costs and expenses for providing credit counseling, ③ Supervision of the approved nonprofit budget and credit counseling agencies. Finally, this paper discuss how the credit counseling can be legislated into Korean bankruptcy law. It is necessary to make the credit counseling mandatory to prevent the abuse of bankruptcy but some adjustment should be made to be more appropriate to Korean society and legal system. For example, not only the nonprofit agency but also Korean Legal Aid Cooperation takes responsibility together in administering credit counseling so that the contents of the counseling would be more professional and unbiased. Furthermore, range of counseling of agency should be limited to drafting a plan for payment of debts and the rest of legal aid should be left to Korean Legal Aid Cooperation. Credit counseling is more practical and fundamental solution to a debtor"s financial crisis and national problem caused by the increased number of bankrupted individuals, therefore, it should be adopted.

목차 (Table of Contents)

• Ⅰ. 서설
  Ⅱ. 신용상담제도의 도입 필요성
  Ⅲ. 우리나라의 법률 및 신용상담제도의 실태
  Ⅳ. 미국의 신용상담제도
  Ⅴ. 입법론
  Ⅵ. 결론
  【참고문헌】
  【Abstract】
  

참고문헌 (Reference)

• 1 "파산절차에서의 조세법률관계" 법원도서관 98 : 2002
• 2 "파산법 일부개정안 심사보고서" 법제사법위원회; 국회사무처 (1) : 2005.2
• 3 "도산법제에 있어서의 파산절차의 특색 파산법의 문제점 下" 법원도서관 1999
• 4 "개인파산의 이해" 도서출판 해오름 2004
• 5 "^개인파산 회생실무" 서울중앙지방법원 파산부 실무연구회 박영사 2005
• 6 "White III, USPT's Top Priority: Making Bankruptcy Reform Work" 55 : 2003
• 7 "Tips for Individual Meetings of Creditors in Post BAPCPA" 2007
• 8 "Requirement of credit counseling and the effect on negotiations to avoid bankruptcy" 2007
• 9 "Real Benefit or Just Smoke and Mirrors?" William L. Norton, III Boult, Cummings, Conners & Berry PLC Nashville, TN 2007
• 10 "Abusive Practices in Credit Counseling: Hearing Before Permanent Subcommittee on Investigations" 2004
• 11 "337 B.R. 173 Bankr. E.D. Tenn" -80395, 2005