통합도산법 시행 이후 한국의 기업회생 실무와 쟁점

Abstract

The Debtor Rehabilitation and Bankruptcy Act (“DRBA”), which became effective in April 2006, was a turning point in the process of a quantum leap in legal system and practices related to the insolvency. The DRBA incorporates the following four areas of proceedings into one Act: namely, the composition proceedings, the corporate reorganization proceedings, the liquidation proceedings, and the rehabilitation proceedings for individuals and newly introduces the transnational insolvency proceedings. The most notable change in the DRBA is the integration of the composition proceedings and the corporate reorganization proceedings into the single framework of the business rehabilitation proceedings. By introducing the quasi DIP system and changing the systems to be more favorable to incumbent managers and controlling shareholders, more companies are induced to utilize rehabilitation proceedings at an earlier stage. These changes have visible effect now. The number of corporate rehabilitation applications filed with the Seoul Central District Court is on the fast rise since the DRBA became effective. This article introduces practices in the business rehabilitation system in Korea and briefly discuss the following issues that are now under debate: (1) Are the out-of-court insolvency proceedings desirable?; What impact do they have on the court-supervised proceedings?; (2) Is the corporate governance mechanism operating properly based on the quasi DIP system?; (3) What impact does the absence of the automatic stay have? (4) Is the so-called principle of economic determination, based on comparison between the going concern value and the liquidation value, effective and adequate?; (5) Are the principle and structure of distribution among creditors and between creditors and equity shareholders reasonable?; and (6) In what scope and method should the court involve?In conclusion, the author suggests on the business rehabilitation proceedings as follows. The ideology of the insolvency system and the rehabilitation proceedings is realized when the effect or benefit to be gained is the greatest in the rehabilitation proceedings and gets smaller in the liquidation proceedings and even smaller in individual debt collection proceedings. Any obstacle in the way should be removed, and any debtor that is incapable of realizing such effect or benefit should be reasonably excluded from the rehabilitation proceedings. A company that is profitable but in financial distress due to the management’s fault should consider a replacement of its corporate governance. Interested parties, including creditors, should be able to negotiate and agree to a rational distribution without any procedural delay and with efficiency. Ultimately, it is desirable for the court to refrain from guardian involvement and, in the capacity of neutral referee, to conduct fair proceedings and effect rational and equitable distribution.