기업구조조정 촉진법 상시화 법률안에 대한 비판적 검토

Abstract

A Critical Review of the Proposed Legislation of the Corporate Restructuring Promotion Act as a Permanent Statute Han, Min On May 11, 2015, a legislative bill (the ‘proposed bill’) converting the Corporate Restructuring Promotion Act (‘CRPA’) into a permanent statute was submitted to the National Assembly. Thus far, conflicting views have been put forward on the necessity of a permanent legislation of CRPA. With the proposed bill in anticipation of the expiration of the CRPA as of December 31, 2015, the debate over a permanent legislation has moved on to a new, more practical and concrete level. While maintaining the basic structure of the current CRPA, the proposed bill aims at improving upon the CRPA by addressing those certain points of criticism since its initial promulgation. Notable among these include: (i) expansion of the scope of creditors subject to the CRPA (including foreign financial creditors, etc.); (ii) improvement of the right of appraisal granted to dissenting creditors (including the assurance of at least the liquidation value of their claims); (iii) improvement of measures to extend new credit (e.g., loss-sharing by those assenting creditors not extending new credit, strengthening the relative priority granted to claims for new credit); (iv) introduction of ex post judicial remedies on the fairness and equity of debt rescheduling and new credit extension (i.e., expansion of the causes of action to cancel the resolutions of the creditors committee); and (v) introduction of a non-binding mediation by the Financial Supervisory Service. The purpose of this article is to: (a) conduct a concrete review of the major provisions of the proposed bill; (b) point out that the legal structure of workout procedures as adopted by the proposed bill fails to meet the adequacy as a permanent statute, due mainly to the inherent problems associated with protecting creditors’ interests and ensuring procedural fairness; and (c) propose as an alternative the introduction of a new workout model involving an ex ante judicial review. The permanent statute which applies at ordinary times should meet the enhanced standard for fairness and equity, both procedurally and substantively, which the author believes could be achieved by the introduction of an ex ante judical review aimed at protecting creditor rights and ensuring procedural fairness. In this regard, this article suggests the introduction of a new workout model requiring court intervention in the core stages of the workout procedures under the CRPA, to the extent that it does not materially prejudice the merits of a workout. This may involve, for instance, the court approval of a workout plan, the court’s provisional remedies on moratorium and court’s approval for new credit extension. Where the CRPA procedures apply to foreign creditors, the CRPA and the procedures therenunder get internationalized. As such, it would also be necessary for the permanent CRPA to meet the global standard as an adequate insolvency regime. If there remain important public interest needs to re-legislate the CRPA, it would be desirable to re-enact the current CRPA once again with limited duration, rather than to legislate a permanent law. A permanent statute can then be prepared after a more careful study with sufficient time.