The bankruptcy generally indicated a phenomenon that the debtor's economic activities went bankrupt to have difficulties at performance of obligation or to be unable to reimburse debt. In modern industrial society, people paid more attention to the bankruptcy that had great influence upon the society. In other words, the ones who went bankrupt, their family and employees, the creditors and other interest parties, etc had collision of interests throughout bankruptcy procedures to create very much enormous disturbance as well as great social and economic fallout in the economic society that became complicated and expanded.
In 1962, the Korean government enacted the Bankruptcy Law, the Company Reorganization Law, the Composition Law and other bankruptcy laws. However, the bankruptcy rarely occurred to produce very much small number of bankruptcy crimes and punishment cases. As a result, interpretation and problems of punishment regulations of the bankruptcy crime were rarely cognized so that the crime was not discussed deeply and theoretically.
In March 2005, the Law of the Debtors' Revival and the Bankruptcy (to be effective and valid from March 2006) was enacted to unify legal systems of the debtors' revival and the bankruptcy and to improve revival and liquidation of the debtors under difficult economic situation and to integrate the four laws, that is to say, the Company Reorganization Law, the Composition Law, the Bankruptcy Law and the Law of the Individual Debtors Revival, etc to make single law system. However, the new and integrated law did not put punishment regulations in good order to integrate punishment regulations of the four laws without amendment and to enumerate them.
However, not only 1997-1998 Asian Financial Crisis but also long-term stagnation increased corporate bankruptcy cases to raise number of individual bad credit holders and to increase the cases of individual bankruptcy and revival. Therefore, bankruptcy crimes were likely to increase rapidly in the future.
The study described interpretation theory of legal contents of the bankruptcy of Korea by referring to contents of the bankruptcy crimes of foreign countries, and it examined problems of the regulations to suggest improvement.
The findings were as follows:
Firstly, some of overlapped regulations of the fraud and bankruptcy law were required to integrate them and enact single regulation, for instance, Article 643 of the fraud and revival crime, Article 644 of the fraud and revival crime of the third party, Article 650 of the fraud and bankruptcy crime, Article 652 of the fraud bankruptcy and negligence fine bankruptcy crime of the ones having specific positions and Article 654 of the fraud and bankruptcy crime of the third party, etc.
Secondly, each behaviour of the Article 651 of the negligence fine crime was difficult to admit of justification that could be an object to punish, so that it had better remove it completely.
Thirdly, paragraph 2 of Article 648 described crime nature being different from that of paragraph 1, so that the paragraph 2 was demanded to incorporate it into Article 649 having similar crime nature.
Fourthly, trade book and closed book related behaviour, for instance, paragraph 3 of Article 643, and paragraph 3 and paragraph 4 of Article 650, commonly occurred as a means to conceal properties of the bankrupt foundation, so that those paragraphs were required to separate them from both Article 643 and Article 650 and to have different systems and to alleviate legal punishment. And, trade book related behaviour was demanded to expand its object and to reduce behavioral forms.
Fifthly, the crime giving and taking a bribe was regulated sporadically and in overlap: Both Article 655 and Article 656 were demanded to incorporate them into Article 645 and Article 646 each.
Sixthly, to remove a gap of conventional punishment or meet amendment of the integrated bankruptcy law, new regulations were required to enact them, for instance, punishment of illegal behaviour of the ones who possessed continuously, punishment of the other party and punishment of all of associated parties.