기업회생제도에 관한 한국과 미국의 비교연구

Abstract

The Corporate rehabilitation system of South Korea(“Korea”) has focused on studying Japanese corporate rehabilitation system because Korea received and followed the Japanese Law which introduced some USA legal systems. However, it seems that interest on USA legal system is increasing as korean style P-Plan system and Stalking Horse Bid are adopted when deciding solutions for recovery management. Therefore, it shall directly study USA Law and compare it to Korean Law to review current state of Korean corporate rehabilitation system and to search for the direction of the future development. For this reason, this study compares and analyzes korea and USA legal systems step by step, including ① the development of corporate rehabilitation system ② the application for and process of rehabilitation procedures ③ the decision and confirmation on rehabilitation plans, and ④ the execution and termination of rehabilitation plans. ① The development of corporate rehabilitation system. U.S. Code: Title 11-Bankruptcy was legislated in 1800 on the basis of chapter 1, Article 8, Clause 4 of US Constitution while Company Reorganization Act, Composition Act and Bankruptcy Act were legislated in 1962; Individual Debtor Rehabilitation Act was legislated in 2004 in Korea. Then in 2005, these four laws were integrated into Debtor Rehabilitation and Bankruptcy Act as a special law on rehabilitation procedures, covering rehabilitation, bankruptcy, and punitive provisions. ② The application for and process of rehabilitation procedures. The US adopts automatic stay which automatically prevents creditors from exercising individual rights while Korea adopts cumbersome procedures like the preservative measure, the stay order, or the general prohition order. Therefore, it is advisable to reform these cumbersome procedures as soon as possible in Korea. Also, US Law does not require that a custodian should be appointed and leaves the management in the hands of the existing management. Although Korea makes it a rule to appoint a custodian, the existing management has a priority to be appointed as a custodian. Therefore, US and Korean systems are different, but technically, they are not different in that both admit the existing management has a priority. ③ The decision and confirmation on rehabilitation plans. In US, a rehabilitation plan is required to be approved in case of claims’ class over two-thirds of claim amount of creditors who cast votes or more than half of the creditors who cast votes must agree to the plan. On the other hand, in Korea, in case of rehabilitation claims, the approval of creditors who own two-thirds of total claim amount is needed and in case of rehabilitation security rights, the approval of creditors who own three-fourths of total claim amount is needed. These requirements are so strict that they impede efficient rehabilitation. We must deregulate these requirements drastically. Finally, ④ the execution and termination of rehabilitation plans. In both US and Korea, once the approval of the rehabilitation plan is decided, all the statements provided, while planning the approval, have the same effect as the final decisions(res judicita). In US, as soon as a rehabilitation plan is approved, the rights to operate business and to control the property return to the debtor from DIP. On the other hand, in Korea, even if a rehabilitation plan is approved, the rights to operate business and to control the property do not return to the debtor; the custodian leads the process of carrying out the plan until the rehabilitation procedures end. In both US and Korean systems, rehabilitation procedures can be terminated even if the liquidation process is not completed.