회생계획인가의 효력에 관한 판례 비평

Abstract

The existing debt of a company that has filed the corporate rehabilitation proceeding can be reduced or deferred according to the rehabilitation plan. Some problems occur, however, with respect to this sort of effect of rehabilitation plan: First, the meanings of ‘the exemption’ in Article 251 and ‘the modification’ in Article 252 Clause 1; second, the relationship between Article 251 ‘the exemption’ and Article 252 ‘the modification’. First of all, about the meanings of the exemption and the modification, there is a venue(the debt nullification speculation) that the debt from rehabilitation creditors and security holders is completely nullified, and there is another venue(the liability nullification speculation) that the debt is not nullified but it is only the obligation for liquidation that is entitled to nullification. The Supreme Court adopts the liability nullification speculation about Article 251 and the debt nullification speculation about Article 252 Clause 1. This is, however, not a comprehensive interpretation of the Debtor Rehabilitation Act, and is inappropriate due to the excessively predisposed result from a literal interpretation of the text. Moreover, a broad principle for the relation of both parties should be to stipulate a perspective that Article 251 should exclude acknowledged rights according to the provisions of rehabilitation plan or similar provisions, when the rehabilitation plan has been authorized. Thereby, the company is nullified from the obligation from all rehabilitation bonds and securities. Article 252 Clause 1 should be interpreted as that the right reflected on the rehabilitation plan changes the right according to the contents of the rehabilitation plan; that is, the right is seen to be acknowledged according to the rehabilitation plan. Consequently, an unapproved component should be considered to be exempted from the obligation according to Article 251.