도산절차 개시의 요건
Standards for Commencement of Insolvency Proceedings
김성용
초록
This article critically reviews those standards for commencement of insolvency proceedings that are stipulated in the Korean Insolvency Act. Its arguments are as follows: “Balance sheet insolvency” of a juridical entity should be excluded from the commencement standards in the case of involuntary petition so as to protect the value of “call options” held by its equityholders; Given that, “when a debtor is unable to pay its debts as they fall due without incurring severe damages to its business,” it will always be deemed in “equity insolvency,” the former should not constitute an independent commencement standard for a rehabilitation proceeding as distinct from the latter; “Cessation of payment” should be added to the commencement standards, and; A rehabilitation proceeding should not be allowed to commence involuntarily when there is only “a concern that a debtor would become insolvent.”