破産節次上 免責의 正當性에 관한 연구

Abstract

The bankruptcy discharge has been said to have two goals; the protection of and payment to creditors, and fresh start of overburdened debtors. But maximization of payment to creditors is not accurate any more because the great majority of consumer bankruptcy cases produce little or nothing for the payments to creditors. Moreover, the protection of bankrupt debtors can not be a core basis for the discharge because other 'safety net' programs already provide minimal social welfare for the poor. Without other justification, the discharge is just a clumsy instrument that impose uncompensated loss on creditors. Yet, the discharge has social and economic value beyond protection of debtors. The discharge is a kind of insurance. It provides the debtor with credit insurance coverage in an amount equal to his dischargeable liabilities less his nonexempt assets at bankruptcy. Collections efforts directed at post-bankruptcy earnings are the most likely cause of debtors underemployment or unemployment. In this situation, debtors tend to resort to the benefits of various social insurance or public assistance 'safety net' program instead of hard working, whose returns are taken by creditors. Debtors' excessive reliance on self-insurance results from cognitive biases in judgment regarding risk-creating activity. Of the variety of possible responses to those problems, discharge provides debtors with substitute for self-insurance. So, discharge should afford complete protection to the debtor's post-bankruptcy income and to the property acquired with that income. Likewise, the discharge relief extends to other post-bankruptcy conducts-reaffirmations, informal collections, employment discrimination and governmental discrimination. By placing the creditor in the position of insurer, discharge increases creditors' incentives both to engage in preventive activities and to require preventive steps on the part of the debtor. Discharge as an insurance has moral hazards in insurance. The empirical studies suggest that risk-taking behaviors and insurance decisions of consumer debtors are not ordinarily affected by the existence of discharge rights. The focus of pre-default incentives, at least as to contract debts, is on the creditor. Post-default incentives, by contrast, are a central part of the bankruptcy discharge. To prevent ex post moral hazard, discharge affords debtors only the minimal protection as exemption. Some degree of protection as exemption may well be required in order to render the discharge more attractive than resorting to the social insurance system. The debtor has to surrender its existing property beyond that level which tends to render discharge attractive. The debts whose collections costs might be transferred to the public are excepted from discharge. Discharge is essentially denied in cases where debtors interfere in or do not cooperate with the monitoring activities of courts and creditors.