A Study on the Target of Avoidance in Korean Bankruptcy Law: When There is No Debtors Action

Abstract

The avoidance power in the Korean bankruptcy law is very similar to the American one with

some difference. The big difference comes from the Korean concept of act. The Korean law system

is based on the continental law rather than the Anglo-American law. The basic target of

avoidance in Korea is the act performed by the debtor (APD).

But the wealth might be transferred without APD. If the transfer without APD could not be

avoided, the goal of bankruptcy procedure might not be accomplished in many cases. Therefore are

there some excepcions. There are two categories of exception. The one is by statute, the other is by

court rulings.

This essay tries to explain what could be avoided in the Korean bankruptcy law. It focuses on

the cases without APD, because the exceptions by the statute are restricted and the legality of

them is out of question.

First, to explain it, this essay shows the structure of the Korean law.

Second, it tries to explain the exceptions by the statute. Especially the civil enforcement act

by court is important.

Next, this essay explains the exceptions by court rulings, which are substantially same and

identifying with APD. These are important, because they are not fixed one till now. They are

just starting to develop. It is necessary to follow it up.