倒産에 임박한 會社와 理事의 義務
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I. Introduction Generally, management of a near-insolvent firm has three options: (1)restructuring(informal as well as informal), (2) liquidation, and (3) just waiting (doing nothing). Managers hestate to take either (1) or (2), because that means the loss of their job and/or their equity investment. This management inaction, which I call “the delay problem”, is problematic because managers, while making no restructuring efforts, may take actions detrimental to creditor interests. Our challenge is how to lead management to take an appropriate action at an early stage of business difficulty. Countries take divergent approaches in dealing with this delay problem. Germany imposes on directors a duty to initiate insolvency proceedings when there are grounds for insolvency (i.e., inability to pay or overindebtedness). On the other hand, UK takes a more flexible approach on this issue. Its so-called “wronful trading” rule imposes on directors a duty to minimize potential loss to the firm’s creditors when the firm is found to have no reasonable prospect for survival. The purpose of this paper is to examine various existing approaches in dealing with the delay problem from a comparative perspective. II. Direct Control of Management Behavior - Germany: Duty to initiate insolvency proceedings - France et. al.: Recapitalize or Liquidate Rule (ROL)- UK: wrongful trading III. Alternative Approaches Adopted to Control Management Behavior - US: “deepening insovency” doctrine - US: fiduciary duties to creditors - Korea & Japan: directors' liability to third parties - Korea: Enterprise Restructuring Promotion Act IV. Evaluation The divergent approaches discussed in the previous sections are discussed with respect to three points. - Who can best make a decision on how to proceed in a near-insolvent firm?- How to formulate an ideal rule in terms of two essential elements, i.e.,triggering point and required action?- How can we explain the divergence of existing approaches in dealing with this delay problem?V. Conclusion
Abstract
I. Introduction Generally, management of a near-insolvent firm has three options: (1)restructuring(informal as well as informal), (2) liquidation, and (3) just waiting (doing nothing). Managers hestate to take either (1) or (2), because that means the loss of their job and/or their equity investment. This management inaction, which I call “the delay problem”, is problematic because managers, while making no restructuring efforts, may take actions detrimental to creditor interests. Our challenge is how to lead management to take an appropriate action at an early stage of business difficulty. Countries take divergent approaches in dealing with this delay problem. Germany imposes on directors a duty to initiate insolvency proceedings when there are grounds for insolvency (i.e., inability to pay or overindebtedness). On the other hand, UK takes a more flexible approach on this issue. Its so-called “wronful trading” rule imposes on directors a duty to minimize potential loss to the firm’s creditors when the firm is found to have no reasonable prospect for survival. The purpose of this paper is to examine various existing approaches in dealing with the delay problem from a comparative perspective. II. Direct Control of Management Behavior - Germany: Duty to initiate insolvency proceedings - France et. al.: Recapitalize or Liquidate Rule (ROL)- UK: wrongful trading III. Alternative Approaches Adopted to Control Management Behavior - US: “deepening insovency” doctrine - US: fiduciary duties to creditors - Korea & Japan: directors' liability to third parties - Korea: Enterprise Restructuring Promotion Act IV. Evaluation The divergent approaches discussed in the previous sections are discussed with respect to three points. - Who can best make a decision on how to proceed in a near-insolvent firm?- How to formulate an ideal rule in terms of two essential elements, i.e.,triggering point and required action?- How can we explain the divergence of existing approaches in dealing with this delay problem?V. Conclusion
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