골프장회원권의 회생절차 내 취급 및 그 보호방안에 대한 소고

Abstract

Matters related to golf course memberships in bankruptcy proceedings have been one of main topics of corporate rehabilitation practices, and a substantial volume of discussion in this regard has been accumulated until now. In particular, there are many studies and researches on ‘depository institution-based golf membership’, such as legal personality, general relationship of rights and duties of the parties, whether to recognize it as a normal rehabilitation claims in rehabilitation proceedings, protection matter of golf course membership regarding its change of rights in Merge and Acquisition before authorization of rehabilitation plan and/or trust for security, and any other protection measures for golf course membership holders. Here, I tried to analyze a substantial limitation of an immediate appeal and/or a re-appeal on court-approved rehabilitation plan, and an application for a judgment in claim allowance proceedings for rehabilitation claims and a lawsuit objecting to such judgment in claim allowance proceedings as allowed legal right to claim under the Debtor Rehabilitation and Bankruptcy Act from the perspective of golf course membership holders. Until now, there are several discussions on several measures to support golf course membership holders’ positions, such as the improvement of negative cognitions, the revision of the Installation and Utilization of Sports Facilities Act, procedural consideration for golf course membership holders in golf course company rehabilitation proceedings, appointment of Chief Restructuring Officer in accordance with Creditors Consultative Committee’s recommendation, and financial support by way of claim for public interests, the introduction of the guarantee system for parceling out of golf course memberships, regulation of golf course membership rule as a regulation of terms and conditions. In addition to the above discussions, I hereby suggest several measures to support golf course membership holders’ positions, i.e. recognition of sub-Creditors Consultative Committee and guarantee of procedural participation rights, which would not require legislative process and the exercise of judicial discretion. Moreover, the ‘right of using a golf course membership’ is recognized as one part of a golf course membership in a rehabilitation proceeding, but its independent value is not appreciated in full in the rehabilitation plan in practice. We need a change of the current practice. If there is a substantial change of business methods of a golf course company, or Merge and Acquisition before authorization of rehabilitation plan as an only alternative way to continue a rehabilitation proceeding is pursued, non-monetary rights as a rehabilitation claim should be able to appraised as at the time of rehabilitation procedures commencement. Basically, the purpose of the Debtor Rehabilitation and Bankruptcy Act is to rehabilitate debtors facing distress due to financial difficulties in an efficient way, to continue their businesses, and to fairly distribute their properties towards many creditors, those of which seem to be contradictory to each other. Through the exercise of judicial discretion as well as legislative measures, the aforementioned purpose would be realized well in the end hopefully.