채권자협의회 제도의 문제점 및 개선방향

Abstract

Rehabilitation Procedure is adjusting and coordinating multiple interests of person concerned in this procedure including creditors, shareholders etc. against debtor in financial distress. Historically and Comparatively insolvency procedure has many purposes including but not limited to rehabilitation of debtor, satisfaction of creditors and fair treatment of creditors. Especially, creditors’ rights are heavily limited in rehabilitation procedures, so creditors’ involvement in this procedure is one of the major task in order to assign justification over limitation of creditors’ rights. The current Debtor Rehabilitation and Bankruptcy Act has a system called as “Creditor’s Consultative Council” except small and medium sized business, whereby creditors have several rights, however rehabilitation procedure is yet deemed to be unfavorable to creditors in the name of ‘court receivership’. Especially historically in our country, there is Work-Out procedure as ‘out of court restructuring system’ through Creditor Bank’s Voluntary Operating Committee or Corporate Restructuring Promotion Act, and those ‘out of court restructuring system is recognized as much more favorable to creditors rather than rehabilitation procedure in Debtor Rehabilitation and Bankruptcy Act, in terms of creditors’ rights and functions. The current Debtor Rehabilitation and Bankruptcy Act adopted Debtor in Possession in order to activate rehabilitation procedures, however Creditor’s Consultative Council is less revitalized in full due to of complex causes such as matter of rehabilitation system itself and operational matters etc. Comparing our rehabilitation procedures with U.S., Germany, Japan, England and France, there are several shortfalls in our Creditor’s Consultative Council in terms of the balance of power with Custodian. So, I hereby suggest several improvement plan such as full consideration of creditor’s opinion over appointment and/or dismissal of Custodian, third party co-custodian appointment, full consideration of creditor’s opinion over drat rehabilitation plan, Right to seek damages etc against any custodian of debtor responsible to debtor corporation, forming a consultative committee for monitoring of ability to carry out rehabilitation plan. Through the above suggestion, the current rehabilitation procedure would be activated and the ‘out of court restructuring system’ would be combined to rehabilitation procedure in the end.