기업파산과 지배주주 등의 후순위화 법리 - 미국의 법리와 그 시사점을 중심으로 -

Abstract

This study examines the so-called "equitable subordination"principle of the United States which allows the court to have the power and authority to subordinate prior claims, including those of insiders such as controlling shareholders, on the assets of a bankrupt debtor company to the claims of junior claimants based on principals of equity. Until recently in Korea, when a company went bankrupt, direct forms of pursuing liabilities of its executives, especially when it was a small to mid sized and/or closed company, had been commonly occurred because they were subject not only to "executives' liabilities on third parties" as stipulated in the Commercial Law (Article 401, Clause 1) but also to the principle of "disregard of the corporate fiction -piercing the corporate veil. Indirect forms of, however, of holding company executives liable as practiced in the United States applying the "equitable subordination" principle had not been seen in Korea. By examining the United State's legal system that has positively utilized "the principle of equitable subordination based on principals of equity," this study attempts at providing effective measures to protect company creditors. Part II of the study lists the rationale of and conditions for application of the equitable subordination principle. Part III analyzes related cases and theories. Part IV examines major theories of equitable subordination by elements. And more discusses its implications for Korea's financial market, finally provides a few suggestions.