사전계획안 회생절차의 최근 동향

Abstract

The pre-insolvency process in the US is classified into the prepackaged Chapter 11 case and the prenegotiated or prearranged Chapter 11 case. In a prenegotiated case, a company in the financial distress seeks to reach an agreement with as many creditors as possible prior to filing for the bankruptcy, but does not solicit the actual votes on a Chapter 11 plan prior to such filing. The debtor, after the filing, proceeds to request the approval of the disclosure statement by the bankruptcy court, solicitation of the votes and confirmation of the plan. In a prepackaged case, the debtor reaches an agreement on the terms of the prepackaged Chapter 11 plan with its key creditors and solicits acceptance for that plan prior to filing for a bankruptcy protection prior to the filing. After the filing, the debtor asks the court to confirm the plan and approve the related disclosure statement and solicitation procedures on an expedited basis. The prepack administration in the UK is an arrangement pursuant to which a plan relating to the business of a distressed company is negotiated and agreed by the requisite stakeholders prior to the appointment of an administrator, and implemented upon the commencement of the administration. The nature of the agreed plan usually results in a going concern sale of all or part of the company’s business and assets. A prepack administration combines the feature of an informal restructuring and a formal administration procedure, allowing for private negotiations to be made in relation to restructuring of the company on an informal basis, before subsequently effecting the deal under a formal administration procedure. The P-plan insolvency procedure in Korea was introduced into the Debtor Rehabilitation and Bankruptcy Act in 2016 and has been utilized in various district courts including the Seoul Bankruptcy Court. Recently, the prepackaged cases have been more successful as combined with the Autonomous Restructuring Support(ARS) Program. Any creditor(s) holding claims corresponding to at least 1/2 of the total debts or the debtor with the consent of such creditor(s) is entitled to submit a prepackaged plan after filing of the petition of the rehabilitation proceeding until the commencement of the proceeding. The prepackaged plan will become effective after obtaining the requisite votes consenting to the plan and the court approval thereafter. The ARS Program was announced by the Seoul Bankruptcy Court on July 1, 2018 to combine the rehabilitation procedure and the work-out program or the administration procedure under the Enterprise Restructuring Facilitation Act under which the two procedures can proceed concurrently. If a company filing for the rehabilitation proceeding express the intent to utilize the ARS Program, the court holds the commencement of the proceeding up to 3 to 4 months at the maximum in order to allow the company the opportunity for private restructuring with the creditors. If the company agreed on the private restructuring with the creditors, then the company can withdraw the petition to close the proceeding. If not, the court will promptly decide on the commencement of the proceeding in order to proceed with the rehabilitation proceeding.