미국의 ‘회생계획안 사전제출제도(Prepackaged Bankruptcy)’에 관한 연구

Abstract

A prepackaged bankruptcy plan was introduced with the revision of the United States' (U.S.) Federal Law on Debt Collection and Bankruptcy in 1978, and the Republic of Korea also adopted the plan with the amendment of the former Corporate Reorganization Act in 2001. The plan was retained in the Debtor Rehabilitation and Bankruptcy Act established in 2005, and further complemented in the 2016 revision, which remains to the present. To file Chapter 11 can be categorized into: ① a free-fall bankruptcy, where a debtor files for bankruptcy under Chapter 11 without prearrangement of the details of the rehabilitation plan, ② a pre-negotiated bankruptcy, under which a debtor files for rehabilitation procedures after having negotiated with the creditors regarding the plan (but not making decisions), and ③ a pre-packaged bankruptcy, where a debtor files for bankruptcy after having negotiation with the creditors and making decisions on the plan. This research offers a number of meaningful insights. First of all, requirements for pre-bankruptcy filings needs to be eased. Unlike the U.S. system, which enables a debtor to freely file for a plan regardless of the creditors’ consent, the Korean law only allows a creditor holding a claim corresponding to at least 1/2 of the debtor's obligations, or a debtor who obtained the consent from such creditor to pursue the plan. As such, the Korean law must be amended to allow for all three types of prepackaged bankruptcy plans. That is, to allow the filing to those who do not have a prearranged plan, and to immediately approve a pre-packaged plan that has satisfied the requirements for the proceeding. Second, the period for filing should be extended. In Korea, the period for filing a prepackaged bankruptcy plan is strictly regulated, from the date of filing for the commencement of rehabilitation procedure to before the commencement. On the contrary, under the U.S. system, a debtor in a voluntary case may file a plan upon its filing for the commencement, and a debtor in an involuntary case may also file a plan at any time during the proceedings. Third, the system must be prevented from being abused and the creditors’ right must be protected. While the major advantages of the prepackaged bankruptcy lie in the prompt and cost-efficient operation of rehabilitation procedures, it may not sufficiently protect the rights of obligor, such as the exercise of avoidance power, rejection of an executory bilateral contract, or confirmation procedure regarding rehabilitation security rights and rehabilitation claims. For this reason, the U.S. prepackaged bankruptcy aims to speed up the rehabilitation procedures, while at the same time to protect the parties from the breach of their right to make decisions. In the same vein, the Korean prepackaged bankruptcy plan must be more cautious in protecting substantive rights of creditors from infringement.