도산사건의 실증적 연구와 법원의 역할 - 개인도산사건을 중심으로 - = The Empirical Studies on Bankruptcy Cases and the Role of the Court - Focused on Personal Bankruptcy Cases -

다국어 초록 (Multilingual Abstract)

Compared to general civil laws and criminal laws, bankruptcy laws have more concern on promoting the policy of rehabilitation and revitalization of individuals and the national economy, than on adjudicating “right or wrong”. Bankruptcy laws are also intended to balance such policy effects with the rights of creditors who would lose their claims in the bankruptcy process. In order to examine if bankruptcy laws has served and will be serving the intended functions of these policies, this research focuses on the current status and challenges of empirical studies on such policy-oriented bankruptcy legislation.
With this purpose in mind, this research first examines the U.S. Consumer Bankruptcy Project (CBP). The CBP is a series of empirical studies on consumer bankruptcy that were conducted on a large scale, five times, from 1980 to 2015 and has been considered as an exemplary model of empirical research on consumer bankruptcy. Investigators of the CBP collected and analyzed data to address various research agendas, which have been also utilized by many other researchers for their individual studies. In addition, this research reviews other various domestic and foreign empirical studies. Implications could be derived from the research agendas and methodologies used by these studies, which may shed some lights on how to develop empirical research in Korea.
For the development of the bankruptcy system in Korea, more empirical research needs to be conducted in the future. The court is critical in fostering an environment for this empirical research because it has records of bankruptcy cases, which are the most important data in empirical research, and it has the relevant expertise gained from overseeing bankruptcy cases.
As an example of empirical research conducted by the court, the Seoul Rehabilitation Court has been working on establishing database that can be the basis for empirical research. This important work has been, however, conducted by full-time judges, trustees in bankruptcy, and personal rehabilitation commissioners as their schedule permits. Considering that academia has long appealed to the court for the need of empirical data for the development of the bankruptcy system through more empirical research in Korea, measures to ensure that the current works of the Seoul Rehabilitation Court continue and expand nationwide need to be devised.
Given the importance of the role of the court in fostering empirical research in this area, lessons could be found from the U.S. Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), which lays the responsibility of collecting empirical data on federal courts. Having such a provision may not be necessary for courts in Korea to establish a database for empirical research; however, having such a provision could have unnecessary debates avoided on the role of the court and provide legislative ground for securing budgets and personnels.
If conditions allow, the court could also consider adopting research agendas and conducting full-fledged empirical research by itself. Under the current organization structure of the Judiciary of Korea, the Judicial Policy Research Institute (JPRI) would be an appropriate institution that carries out such tasks; however, the JPRI would need to recruit and retain professional researchers with expertise in empirical studies in advance.
If empirical studies are conducted by the court, the method and scope of publication of research results also need to be considered. In particular, decision-makers would need to discuss and decide whether the research results would be open to public; and if so, they would need to decide how they would be made available and whether a translated version in major foreign languages such as English would be provided.
In order to reduce the workload caused by empirical research, the electronic system of the court needs to be improved to computerize court records and facilitate data retrieval. It is suggested to expand the e-Form reporting system by trustees in bankruptcy nationwide, to introduce the e-Form system even in personal rehabilitation procedures, and to take measures to automatically extract data from formalized forms in consideration of the growing number of electronic lawsuits.