통합도산법상 채권자 협의회의 기능강화 방안 연구

Abstract

「The Debtor Rehabilitation and Bankruptcy Act」 (also known as the unified insolvency act) is a unified form of restructuring enterprise insolvency procedure into「Rehabilitation procedure」 which was traditionally divided into Composition policy and Enterprise cleaning policy. Taking this amendment into consideration, there has been a substantial alteration in Custodian policy by introducing prior management custodian system which directed the creditors, facing a financial crisis, to apply for launching rehabilitation procedure in an early stage. Also, in order to contain and monitor the prior management being elected as the custodians and exercising their management disposal rights and business operation rights over the company's asset, there has been a reenforcement over system and rights of the creditor's committee. However, shining the light on the fact that many there are numerous legislation cases that show the current system in many countries are shifting from the prior Court leaded rehabilitation procedure to Creditor leaded rehabilitation procedure, and one of the crucial objectives of the perspective of an enterprise's domination structure theory or rehabilitation law is the maximization of satisfaction of the creditor, there has been many doubts posed to whether this is an appropriate decision. In other words, in comparison to the normally operating enterprises, enterprises in insolvency or enterprises insolvent already in process of rehabilitation have a high possibility of showing moral hazard phenomenon. Accordingly, the greatest victims of this moral hazard are the creditors. The shareholders and the management should be the first ones to be financially and legally responsible for the pre-occurrence of insolvency or insolvency and creditors should be the priority over the shareholders to be protected. In spite of this, the prior management selected by the shareholders or the prior shareholders constantly having the managing authority over the company can be regarded as going against the capitalistic law. In this dissertation, there will be a comparison analysis on the legislation trend in the developed nations to have a thorough understanding of the current situation and the problems of the creditor committee system regarding the enterprise rehabilitation procedure, search for the methods to enforce the system and propose a number of solutions for the legislation when there is amendment for rehabilitation law in the future. At this point, there needs to be a notification that the current unified insolvency act article 74 regulation system needs its laws and exceptions to be altered. Furthermore, when it comes to Korea's rehabilitation procedure, the jurisdiction of the court is substantial, and this could be a hinderance in securing the flexibility of a company's management. Thus, there should be a minimization in the court's jurisdiction and power. The function of the creditor's committee should be empowered in order to strengthen the creditor's authority in the process of rehabilitation. Lastly, questioning on the responsibility of supervisors and the surveillance policy needs to be a ground breaking improvement.