도산법상 기존경영자 관리인의 지위
The Debtor-In-Possession in Korean Bankruptcy Law
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Abstract
Korea introduced the Debtor-In-Possession(DIP) to the Reorganization and Bankruptcy Law in 2005. Korean DIP is slightly different from that of the US in that we need the decision of the bankruptcy court. However, this amendment was revolutionary because this shows that we have changed our attitude toward the goal of the reorganization process. It seems that efficiency and speedy management of the reorganization cases have taken the top priority. In spite of some arguments against the introduction of this pro-debtor institute, the court allows the DIPs keep their positions in almost all the cases after the amendment. Allowing for the tenacious stance against the DIP before the amendment, the adaptability of the court seems admirable. Among the new problems presented by this changed circumstances, the author covers the basics: the status of the DIP and the relationship of the DIP with the shareholders. We have no provisions regarding the status of the DIP in the Reorganization and Bankruptcy Law. The author argues that some articles of the Trust Code should be applied to the DIP, especially the DIP's duty of loyalty. Although the DIP does not lose its status as the director of the bankrupt corporation, she owes the duty of loyalty not only to the shareholders, but also to the creditors. In the usual case of insolvency, where the assets exceeds the liabilities, the author argues the DIP owes the fiduciary duties only to the creditors. According to the Commercial Law, the directors shall be elected and removed only by the shareholders. However, after the initiation of the reorganization process, the shareholders’ right to remove the directors should be denied when the corporation is insolvent, because the shareholders would no longer be real parties in interest. Therefore, the court should not permit the shareholders’ meeting of the insolvent corporation. Even if the company is not insolvent, the author argues that the court should be allowed to consider factors such as the performance and integrity of the DIP, the possible influence upon the reorganization process.
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