기업회생절차의 진행단계별 쟁점에 관한 연구 (A Study on the Issues by Progress Stage in Corporate Rehabilitation Procedures)

서지정보

· 발행기관 : 한국경영법률학회
· 수록지 정보 : 경영법률 / 22권 / 1호 / 175 ~ 215페이지
· 저자명 : 박승두

초록

The 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. Such procedures for debtors to rehabilitate are divided into individual rehabilitation procedure and corporate rehabilitation procedure.
And the former means rehabilitation procedures for a person ① who is a personal debtor, or the one who had a clearly causative fact of bankruptcy or a person having a risk of occurrence of such a fact or having 1 billion won for personal rehabilitation claims secured by a lien, the right of pledge, mortgage, transferable security right, provisional registration security right, leasehold rights, or priority privilege, ② and other rehabilitation procedures for a salary income earner or operating income earner (Article 579) who has to pay off less than 500 million won, which is provided in Chapter 4 of the Rehabilitation Act.
While the latter means the procedure for the other debtors. Accordingly, the individual rehabilitation procedure is not applied to all personal debtors but limited to the person whose amount to be claimed is less than the amount specified above; in case of excess of this amount, the corporate rehabilitation procedure which is provided in Chapter 2 of the Rehabilitation Act, is to be applied to the person in the same way.
This study looked into the major contents and controversial issues by progress stage in corporate rehabilitation procedures. First, it becomes a problem whether the other party can cancel the existing contract by the reason that a company filed for the initiation of corporate rehabilitation procedures, and whether a special contract specifying that a contract can be cancelled when a company files for rehabilitation procedures in advance is possible. Regarding this, the Japanese judicial precedent customarily adopts the negative theory while Korea adopts the affirmative theory. Considering the purport of the Debtor Rehabilitation Act for corporate rehabilitation, this research thinks the negative theory is valid.
Second, once the suspension order is given to a company based on the Debtor Rehabilitation Act, a creditor is not allowed to do any compulsory execution. However, in case a rehabilitation creditor or rehabilitation mortgagee pay the debt on behalf of the then debtor at the time of the initiation of rehabilitation procedures, it's possible for them to offset the restriction of compulsory execution; here arises a problem of whether a creditor can collect the bond of the members of corporate association, which filed for rehabilitation procedures, by disposing of the holdings (investment security) invested in the corporate mutual aid association by corporate personnel. Regarding this, this researcher thinks it's possible considering our judicial precedent and the fundamental law on Construction Industry.
Third, in case of a bilateral non-execution bilateral contract based on the debtor rehabilitation law, the other party's claims become public interest claims when a custodian chooses the continuance and progress of this contract, and here, there arises a problem of its application scope. As for this, as shown in the interpretations of the Supreme Court, the claims currently not in execution should be all included as the same contract matter regardless of the fact the non-execution occurred before the decision on initiation or after.
Fourth, once the rehabilitation proposal is authorized, in principle, the liability related to all rehabilitation claims and rehabilitation security right is exempted (immunity), and the right of rehabilitation creditors, rehabilitation security right holder, and stockholders are modified according to the contents specified in the rehabilitation proposal except the right acknowledged by the regulations stipulated regarding rehabilitation proposal and debtor rehabilitation law; here, the meaning of "immunity" and "modifications" becomes a controversial issue. Regarding this, the Supreme Court precedent interprets Article 251 as "adopting acquittance of responsibility" and interprets Article 252, Clause 1 as "acquittance of liabilities." However, this research thinks that such an interpretation may be a result from being excessively faithful to the context interpretation and from indiscriminately following the Japanese theory.
Lastly, another problem is "What happen to the force of a rehabilitation plan in case rehabilitation procedures are abolished after a rehabilitation plan is authorized?" The debtor Rehabilitation Law stipulates, "The abolishment of rehabilitation procedures shall not have any effect on the force coming into being by the execution of a rehabilitation plan and the regulations of this rehabilitation procedures law." Accordingly, even if the rehabilitation procedures are abrogated, the rehabilitation plan continues to get effective and even in case a company is declared bankrupt, the rehabilitation procedures are normally handled. Of course, a person who holds a security right is acknowledges as the one having the right of exclusion, so he/she can execute the security collection regardless of bankruptcy procedures. The immunity based on rehabilitation procedures has no effect on corporate guarantor, a person who has to pay debts together with other companies, and property guarantor, so such guarantors have the obligation to pay off the total amount of debts except the performance obtained by a creditor according to rehabilitation procedures; it's because a guarantor isn't applied to the contents in rehabilitation procedures even though a corporate debt is reduced and exempted by a corporate rehabilitation plan.

영어초록

The 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. Such procedures for debtors to rehabilitate are divided into individual rehabilitation procedure and corporate rehabilitation procedure.
And the former means rehabilitation procedures for a person ① who is a personal debtor, or the one who had a clearly causative fact of bankruptcy or a person having a risk of occurrence of such a fact or having 1 billion won for personal rehabilitation claims secured by a lien, the right of pledge, mortgage, transferable security right, provisional registration security right, leasehold rights, or priority privilege, ② and other rehabilitation procedures for a salary income earner or operating income earner (Article 579) who has to pay off less than 500 million won, which is provided in Chapter 4 of the Rehabilitation Act.
While the latter means the procedure for the other debtors. Accordingly, the individual rehabilitation procedure is not applied to all personal debtors but limited to the person whose amount to be claimed is less than the amount specified above; in case of excess of this amount, the corporate rehabilitation procedure which is provided in Chapter 2 of the Rehabilitation Act, is to be applied to the person in the same way.
This study looked into the major contents and controversial issues by progress stage in corporate rehabilitation procedures. First, it becomes a problem whether the other party can cancel the existing contract by the reason that a company filed for the initiation of corporate rehabilitation procedures, and whether a special contract specifying that a contract can be cancelled when a company files for rehabilitation procedures in advance is possible. Regarding this, the Japanese judicial precedent customarily adopts the negative theory while Korea adopts the affirmative theory. Considering the purport of the Debtor Rehabilitation Act for corporate rehabilitation, this research thinks the negative theory is valid.
Second, once the suspension order is given to a company based on the Debtor Rehabilitation Act, a creditor is not allowed to do any compulsory execution. However, in case a rehabilitation creditor or rehabilitation mortgagee pay the debt on behalf of the then debtor at the time of the initiation of rehabilitation procedures, it's possible for them to offset the restriction of compulsory execution; here arises a problem of whether a creditor can collect the bond of the members of corporate association, which filed for rehabilitation procedures, by disposing of the holdings (investment security) invested in the corporate mutual aid association by corporate personnel. Regarding this, this researcher thinks it's possible considering our judicial precedent and the fundamental law on Construction Industry.
Third, in case of a bilateral non-execution bilateral contract based on the debtor rehabilitation law, the other party's claims become public interest claims when a custodian chooses the continuance and progress of this contract, and here, there arises a problem of its application scope. As for this, as shown in the interpretations of the Supreme Court, the claims currently not in execution should be all included as the same contract matter regardless of the fact the non-execution occurred before the decision on initiation or after.
Fourth, once the rehabilitation proposal is authorized, in principle, the liability related to all rehabilitation claims and rehabilitation security right is exempted (immunity), and the right of rehabilitation creditors, rehabilitation security right holder, and stockholders are modified according to the contents specified in the rehabilitation proposal except the right acknowledged by the regulations stipulated regarding rehabilitation proposal and debtor rehabilitation law; here, the meaning of "immunity" and "modifications" becomes a controversial issue. Regarding this, the Supreme Court precedent interprets Article 251 as "adopting acquittance of responsibility" and interprets Article 252, Clause 1 as "acquittance of liabilities." However, this research thinks that such an interpretation may be a result from being excessively faithful to the context interpretation and from indiscriminately following the Japanese theory.
Lastly, another problem is "What happen to the force of a rehabilitation plan in case rehabilitation procedures are abolished after a rehabilitation plan is authorized?" The debtor Rehabilitation Law stipulates, "The abolishment of rehabilitation procedures shall not have any effect on the force coming into being by the execution of a rehabilitation plan and the regulations of this rehabilitation procedures law." Accordingly, even if the rehabilitation procedures are abrogated, the rehabilitation plan continues to get effective and even in case a company is declared bankrupt, the rehabilitation procedures are normally handled. Of course, a person who holds a security right is acknowledges as the one having the right of exclusion, so he/she can execute the security collection regardless of bankruptcy procedures. The immunity based on rehabilitation procedures has no effect on corporate guarantor, a person who has to pay debts together with other companies, and property guarantor, so such guarantors have the obligation to pay off the total amount of debts except the performance obtained by a creditor according to rehabilitation procedures; it's because a guarantor isn't applied to the contents in rehabilitation procedures even though a corporate debt is reduced and exempted by a corporate rehabilitation plan.

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