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채무자의 회생 및 파산에 관한 법률(이하 채무자회생법)은 경제적 파산 위기에 있거나 파산가능성이 있는 채무자로 하여금 법원에 재기의 기회를 신청할 수 있는 법적 절차를 규정한다. 한편, 채무자회생법상 회생회사의 M&A 숫자는 줄어들어든 반면, 다양한 형태의 M&A 절차는 여전히 활용 되고 있다. 이 연구는 기업회생절차 과정에서 진행되는 M&A 절차에서 논 의되는 다양한 법적 쟁점과 절차상의 장단점에 대하여 검토하기로 한다. 기업M&A는 기업이 평상시 활동에서도 자주 활용되는 동시에, 회생단계 에 진입한 회사의 경우에도 유용하게 활용되는 회생절차의 일환이다. 이 과정에서 영업양도, 회사분할, 자본감소 및 신주발행, 신회사설립, 회사 매 각 등 다양한 M&A 방법들이 활용된다. 회생절차에서의 기업 M&A의 경 우 법원의 관리 및 감독이 중요한 영향을 미치며, 회생절차의 진행단계에 따라 법원의 재량권한이 달라진다. 또한 법원의 역할에 따라 회생기업의 M&A의 성공여부가 좌우되기도 한다. 회생기업의 M&A 성공을 위해서는 법원의 유연성있는 대응과 해석역량이 중요함과 동시에 입법적으로 개선 되어야 할 과제들이 있다. 첫째, 회생절차 개시결정이 내려지면 법원이 관 리인에게 회생계획안 제출명령을 할 수 있어야 할 것이다. 둘째, 관리인이 이해관계자집회에 제출하는 보고서 제출과 관련하여, 조사위원이 선임되 는 경우, 관리인의 조사보고를 대체할 수 있도록 개선할 필요가 있다. 셋 째, 관계인집회를 통합하여, 현행법상 관계인집회의 횟수를 명시하고 있는 것을 개선하여, 필요한 경우 법원이 관계인 집회를 소집할 수 있도록 하고, 관계인집회가 필요한 경우를 법에 명시하는 방향으로 개선하는 것도 입법 과제를 제시하였다.

The Debtor Rehabilitation and Bankruptcy Act(“Debtor Rehabilitation Act” provides the procedures for a debtor who is in economic bankruptcy or has a probability of bankruptcy to survive by filing for the Court. Though the number of M&A in the rehabilitation proceeding has decreased under the Debtor Rehabilitation Act, several types of M&As have been observed.. This study looked into th major contents and controversial legal issues by M&A progress stage in corporate rehabilitation procedures. Mergers and Acquisitions are effective means in the process of corporate rehabilitation including in the ordinary business of corporate. By means of corporate M&A, several types of legal procedures, transfer of business, split-off(corporation division), reduction of captial, new stock issuance(rights offering), establishment of a new corporations, are used. The Court of bankruptcy has the power and discretion to manages and oversees the proceedings, moreover, to interpret the current laws and procedures for corporate rehabilitation and M&As. It is no exaggeration to say that the success or failure of the corporate rehabilitation and M&A depends on the Court of Bankruptcy`s flexible manner and attitude interpreting the Debtor Rehabilitation Act and M&A proceedings. Though the court expedited the case interpreting current laws in a flexible manner, the following issues need to bo solved by amendments to the Act; Proposed in the rest of this study is some detailed rehabilitation plans, including how much time should be given before the effectuation of the rehabilitation system; (ⅰ) The court may order a receiver to submit a rehabilitation plan when it renders a commencement decision, (ⅱ) The reports of a receiver at the meeting of parties in interets can be substituted by the report of an examiner, and (ⅲ) the types of meeting of parties in interest based on the order of convocation should be merged into a single type and the meeting can be held whenever necessary.

This paper, on the one hand, analyzes the current Korean family succession tax rules and suggests some remedies as follows: First, the long term enterprise-centered system should be removed so as to cope with the meanings of the tax support system. This will bring the positive effects of improving employment in both sides of maintenance and expansion. Second, the restriction of one successor principle are to be changed. It should be allowed to designate several successors. Third, the current system of a legal portion of an heir is to be 내 far restricted, as to maintain the assets of family business. First of all the successor have the right to postpone the heirs' demanding of their legal portion. Forth, there is a need to review the unification of the deduction method in family business. On the other hand, there is also a need to legally protect the license agreement from the bankruptcy of licensee as well as licensor. The Korean insolvency Act of April 1, 2006, however, does not have any measure as to protecting the licensee from the insolvency. It is high time, for us to regulate such a situation. It would be very reasonable for us to permit the family business successor to request to make a new license agreement, when the licensor or the licensee becomes insolvency.

According to the 2009da90146 judgment of Supreme Court, the transferee is the person holding the transfer security right who receives the return claim for loan on the transferor's third party debtor as the security that occurs due to the termination of sales contract. However, until the third party debtor's sales contract with the transferor is terminated, the transferee is the person holding the conditional transfer security right. Since the claim is transferred to the transferee while its identity of the content is maintained as soon as the claim transfer contract is concluded, the transferee may be able to exercise the transfer security right only after the transferee acquires the conditional claim transfer security right with time limit and the conditions are met or the claim becomes due. Therefore, the transferee's request for terminating the sales contract to the third party is merely the declaration of intention to acquire the general claim transfer security right by having the third party debtor to give notice to terminate the sales contract and the debtor's return claim of sales money against the third party debtor transferred to the transferee, so it cannot be considered as the act to exercise the transfer security right. On the other hand, the exercise of the security right means the realization of rights under private law through automatic execution of the right of realization inherent in the security real right. Therefore, the transfer security right holder's 'payment request' to the third party debtor is a part of realization act exercised in the way provided in the security contract, so it can be considered as the act to exercise the transfer security right. In order for the comprehensive injunction to become effective on such act to exercise the transfer security right in this case, the third party debtor's notice to terminate the sales contract given to the transferor must be valid. However, the clause on the cancellation of bankruptcy is invalid since it may become an obstacle to debtor's successful rehabilitation by the rehabilitation process, and the clause is invalid. the third party debtor have given the notice to terminate the sales contract to the transferor based on this invalid clause on the cancellation of bankruptcy, so the notice is invalid. The notice to cancel the sales contract must be given to the third party debtor's transferor prior to the transferee's payment request which is the act to exercise the transfer security right, but the notice is invalid and the conditions for exercising the transfer security right have not been made. Therefore, the effectiveness of comprehensive injunction is out of the question. If so, the judgment ruling that the termination of sales contract between the third party debtor and the transferor is valid cannot be considered as justifiable. After the implementation of the debtor rehabilitation act, commencement applications for corporate rehabilitation case proceedings in courts across the country skyrocketed from 116 cases in 2006 to 803 cases in 2012, and to 395 by June 2013 (estimated 830 cases by year end) the number continually increasing each year growing to a scale of 7 times the amount 7 years after the law was implemented, however, the success rate of corporate rehabilitation proceedings of 15.5%(19.1% in the first half of 2013) appeared to be much lower than the success rate of the previous company reorganization act of 66.7%. Quantitatively, this can be evaluated as a positive, yet qualitatively, from the standpoint of the goal of the corporate rehabilitation proceeding, the very low success rate can be seen as a dire problem. For the last 3 years the increase of 860 cases of rehabilitation plans in corporate rehabilitation proceedings in courts across the country for 3 years saw a reduction in the time it took from commencement to approval from 9 months 9 days to 8 months 29 days, a reduced wait time, but when considering the total time it takes from applying and waiting about one month for a commencement decision to be made, and the period it takes for the preparing for the application, it appears to take closer to 1 year. Recently ‘fast track rehabilitation proceedings’ have been run for corporate rehabilitation cases by the court and at the working level, but despite this, it was determined that the main reason for the very low success rate was the extremely long wait time it takes for the progression of the proceedings. Through extensive hands-on experience in corporate rehabilitation work, the author reiterates that more than anything else, the necessity of ‘fast rehabilitation proceedings’ as a factor for the success of corporate rehabilitation, and through taking the direction of reducing wait times to increase the success rate of corporate rehabilitation proceedings the process of stages should be either aggressively reduced, merged, or some stages omitted, and when agencies and organizations perform their role and function of improving the system of legislation and rehabilitation proceedings in the abbreviated ‘fast track rehabilitation system,’ working-level improvements would be necessary to perform fast rehabilitation practices.

日本の会社更生法は、韓国の1962年の｢会社整理法｣と2005年度の｢債 務者回生および破産に関する法律｣の制定に大きく参考されたから、この 法律に関する研究の必要性が提起されている。この法律は、1949年に制 定された後、1967年に改正と2002年の全面改正された。この全面改正さ れたものを、一般的に｢新会社更生法｣と呼ぶ。 日本の会社更生法は、様々な理念がある。まず、｢株式会社に対する効率て きな更生の支援｣と｢債権․債務関係の効率てきと公平な処理｣を含め、更生手 続の新速化、更生手続の合理化、更生手続の効力の強化等を目的とする。 更生手続は、株式会社、当該株式会社の資本金の額の10分の1以上に当 たる債権を有する債権者、当該株式会社の総株主の議決権の10分の1以上 を有する株主の申立てにもとづいて、裁判所が決定の形式の裁判で更生 手続開始決定をなすことによって、開始する。 裁判所は、更生手続開始決定と同時に，一人または数人の管財人を選 任し、かつ、更生債権等の申告期間および更生債権等の調査期間を決め る。管財人には、更生会社財産の管理処分権たけでなく、更生会社の事 業経営権專属する。 更生手続の中の企業の労働者を解雇する時、適用される根據法律の問 題で、その企業の労働者を解雇する場合にも、一般の企業とおなじに、 労働法の整理解雇要件を適用するのか(整理解雇說)、あるいは労働法の 要件を適用せずに、會社更生法の雙方未履行雙務契約の解止規定を適用 するのか(雙方未履行雙務契約解止說)に關する、學說が分かれている。 多數說と判例は、整理解雇說である。韓国でも、回生手続き上の解雇に 関する、雙方未履行雙務契約解止說から整理解雇說に轉換されてある。 そして、勞働契約法上の整理解雇說を取っても、その具體的な要件をど のように適用するかの問題がある。即ち、正常企業と同じに適用するか、ま たはもっと緩和された要件を適用するかの問題で、それは一般的に正常企業 より、もっと緩和された基準を適用しなければならないの見解である。 管財人は、更生債権等の申告期間の満了後裁判所の決める期間内に、 更生計画案を作成して裁判所に提出しなければならない。更生計画案の決 議において議決権を行使しうる者は、議決権を認められた更生債権者等お よび議決権を認められた株主である。更生計画案が可決されたときは、裁 判所は、更生計画の認可または不認可の決定をしなければならない。 更生手続の終了原因としては、更生手続開始決定前の始決申立て取下 げとを別として、更生手続開始申立てを棄却する決定の確定、更生手続 開始決定を取り消す決定の確定、更生計画不認可決定の確定、更生手続 廃止決定の確定、更生手続終結決定の５種類の亊由がある。