Reflection and Perfection on the Adjustment of the Investors' Rights and Interests in the Reorganization Procedure

서지정보

· 발행기관 : 한국채무자회생법학회
· 수록지 정보 : 회생법학 / 25호 / 367 ~ 399페이지
· 저자명 : 夏思宇

초록

Based on the need to reconcile the interests conflicts of the reorganization participants, the purpose of protecting creditors who have obtained the residual control right in the reorganization procedure, and the necessity for the investors to be responsible for the company's business failure, it is legitimate to adjust investors' rights and interests in the reorganization procedure. However, due to the complexity of its own connotation, investors' rights and interests does not only reflect the articulation of accounting accounts in the accounting law, but also reveal the rich connotation of shareholders' rights in the company law, which brings multiple possibilities in terms of the specific contents and means of realization of the adjustment of investors' rights and interests. The adjustment of investors' rights and interests is a business arrangement that integrates the generation, change, elimination of legal relationship and complex accounting treatment, and is the key to the substantial success of reorganization.
However, the Bankruptcy Law, as a "law for the protection of creditors", has few provisions on the adjustment of investors' rights and interests. Only paragraph 2 of Article 85 of the Law stipulates that if the draft reorganization plan involves the adjustment of investors' rights and interests a group of investors should be set up to vote on the matter. In addition, there are no clear provisions on the pricing mechanism of investors' rights and interests, the application of the adjustment of investors' rights and interests, the grouping method of the investor group, voting rules and other matters. These legislative loopholes cannot provide scientific, unified, specific and standardized operational guidance for adjustment of investors' rights and interests in the reorganization procedure, which will directly lead to confusion and randomness in the practical operation, resulting in the failure to fully play the functions of the reorganization system. Therefore, it is necessary to further regulate the provisions on the adjustment of investors' rights and interests for the improvement of the reorganization procedure.
This paper believes that the dynamic adaptation and mandatory disclosure of assets appraisal methods can, to some extent, overcome the uncertainty and arbitrariness of the pricing of investors' rights and interests, provide an objective and fair reference basis for the adjustment plan of investors' rights and interests and the draft reorganization plan, and make good preparation for prior adjustment. Clarification of the specific application and principles of the adjustment of investors' rights and interests can provide basic guidance and operational guidance for the reconciliation of the conflicts of interest of reorganization participants in the reorganization procedures and do a good job in the design of the in-process scheme. Finally, refining the voting mechanism of the investor group from three aspects: grouping of the investor group, distinction of voting matters and design of voting avoidance system can ensure that on the basis of giving full play to the vitality of the reorganization system, the investor autonomy can be maintained to the maximum extent, and the dual purpose and balance of interests of the protection of creditors and debtors can be achieved.

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