Earticle

초록

영어

The amendment bill on the Debtors' Rehabilitation and Bankruptcy Law(“Law”) has been proposed to the National Assembly in 2011, which includes among others drastic change of cram-down system as well as introduction of automatic stay. The current cram-down system is intended that the court exercises its discretion in approving the rehabilitation plan although the plan fails to meet the requirements of consenting votes by a certain rehabilitation creditors' group, by providing the clause for protection of the rights of such rehabilitation creditors. The current system reveals some practical problems such as evaluation of fair market value of the secured assets subject to secured rehabilitation creditors' group and actual distribution of proceeds of disposed assets to general rehabilitation creditors. The proposed amendment purports to drastic change of the current system by adopting mandatory approval of rehabilitation plan without allowing the court's discretion, and providing more protection to rehabilitation creditors. For the latter amendment, the bill proposes that the company shall pay debts to dissenting rehabilitation creditors not less than the amount of debts without regard to actual value of assets subject to such creditors. As to this amendment bill, there are sharp criticisms from finance industry as well as academic field. First of all, it is doubtful if the amendment bill has to adopt mandatory approval system instead of discretionary approval system in view of inherent nature of rehabilitation procedure as provided in the Law. The Law has authorized the court to exercise its discretion in approving the rehabilitation plan of a company by considering various factors affecting rehabilitation of such company. This change may negatively affect to use of rehabilitation procedure by industries in view of complicated nature of rehabilitation procedures and balancing interests of creditors, shareholders or other parties concerned. In addition, the requirement that the amount of payment to dissenting rehabilitation creditors be not less than the amount of debts may be also negatively affect to the rehabilitation procedure. This requirement may give more benefit to dissenting creditors than creditors consenting to the rehabilitation plan. As seen above, the proposed amendment is not compatible with the principle or purpose of rehabilitation system ann unrealistic by depriving the court of its discretion in approving the rehabilitation plan. The problems found in the current system should rather be solved by flexible management of the cram-down system instead of adopting the new amendment.

목차

Ⅰ 서론
 Ⅱ 강제인가제도
 Ⅲ 강제인가제도 개정안의 검토
 Ⅳ 개정안에 대한 평가와 전망
 Ⅴ 결론
 참고문헌
 Abstract

키워드

저자

• 최우영 [ Choi, Woo-young | 변호사･법무법인 충정 ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  회생법학 [Korean Law Review for Rehabilitation and Bankruptcy]

• 간기

  반년간

• pISSN

  2093-6923

• 수록기간

  2010~2025

• 등재여부

  KCI 등재

• 십진분류

  KDC 360 DDC 340