회생계획에 의하지 아니한 영업양도 - 미국 연방도산법 제363조 매각 및 일본의 재생계획 등에 의하지 아니한 영업양도를 통한 활성화 방안 -

Abstract

In South Korea rehabilitation practice under the Debtor Rehabilitation and Bankruptcy Act(hereinafter DRBA), various kinds of M&A(Mergers and Acquisitions) such as merger, division of companies, establishment of new companies, issuance of new shares to third parties, transfer of business have been adopted. All M&As within rehabilitation procedure must be conducted through the rehabilitation plan, with the exception of transfer of business. Article 62 of the DRBA clearly provides for whole or partial transfer of businesses of the debtor before the confirmation of the rehabilitation plan, but such transfers are not utilized in practice. Such pre-confirmation transfer of businesses have been adopted in the U.S. and Japanese Bankruptcy practices. In the U.S., the debtor company, soon after opening the case, may sell its business with its assets or transfer it to a new owner under section 363 of the Bankruptcy Code. This provision enabled speedy consummating of the transfer in the Chrysler and GM bankruptcy cases of 2009. In both cases, the debtor company and major creditor(including the U.S. government) made preparations for the transfer prior to filing for bankruptcy by negotiating an agreement to sell nearly all assets of the debtor company to a newly established company, and by simultaneously seeking approval of the agreement when filing for rehabilitation, the parties were able to consummate the transfer in approximately 40 days after the petition. Since the commencement of rehabilitation case casts a negative image on the debtor in Japan, a sponsor who has agreed to receive all or part of the debtor's business is selected prior to filing for rehabilitation in order to prevent damage of debtor's business value. The sponsor makes efforts to prevent the decline of the debtor's business value by providing finance and maintaining transactions, and also completes the agreement to receive the business made prior to filing for rehabilitation by receiving approval of the agreement from the court after filing. Since the decline of debtor's business value after the commencement of rehabilitation case in Korea is similar to that in Japan, transfer of business independent of the rehabilitation plan should be able to prevent such decline in value, enable rehabilitation under the governance of different entity, and increase the amount payable to creditors. Legislative amendments are required in order to facilitate transfers of business independent of the rehabilitation plan in Korea.