미국 연방파산법 제11장 절차에서 DIP에대한 감독시스템 (DIP Supervision System in Chapter 11 of the U.S. Bankruptcy Code)

서지정보

· 발행기관 : 한국민사소송법학회
· 수록지 정보 : 민사소송 / 21권 / 2호 / 255 ~ 284페이지
· 저자명 : 정영수

초록

A fundamental feature of chapter 11 of the U.S. Bankruptcy Code is the “DIP(debtor in possession)” concept. This feature allows the financially distressed company to remain in control of its assets and to continue to operate its business after commencing the chapter 11 case. Proponents of the debtor in possession model highlight the knowledge and expertise of the debtor’s prepetition directors, officers, or similar managing persons concerning the debtor’s business and financial affairs. Critics of the debtor in possession model note that the debtor’s financial or operational difficulties may relate to the conduct or decisions of the debtor’s prepetition directors and officers. The Bankruptcy Code places certain checks on the debtor in possession’s power and decisionmaking authority in chapter 11. For example, the debtor in possession may be replaced by a trustee for cause; a statutory unsecured creditors’ committee frequently is appointed to oversee the debtor in possession’s conduct and to represent the interests of unsecured creditors; major decisions and transactions require notice, hearing, and court approval; an examiner with a specific directive may be appointed to investigate the affairs of the debtor; and the U.S. Trustee and parties in interest have standing to raise and be heard on matters in the case. In recent years many countries have adopted some form of the debtor in possession model either in lieu of or as an alternative to a receiver or administrator. This trend suggests broad recognition of the potential benefits of allowing the honest-but-unfortunate company debtor to lead its own restructuring efforts.

영어초록

A fundamental feature of chapter 11 of the U.S. Bankruptcy Code is the “DIP(debtor in possession)” concept. This feature allows the financially distressed company to remain in control of its assets and to continue to operate its business after commencing the chapter 11 case. Proponents of the debtor in possession model highlight the knowledge and expertise of the debtor’s prepetition directors, officers, or similar managing persons concerning the debtor’s business and financial affairs. Critics of the debtor in possession model note that the debtor’s financial or operational difficulties may relate to the conduct or decisions of the debtor’s prepetition directors and officers. The Bankruptcy Code places certain checks on the debtor in possession’s power and decisionmaking authority in chapter 11. For example, the debtor in possession may be replaced by a trustee for cause; a statutory unsecured creditors’ committee frequently is appointed to oversee the debtor in possession’s conduct and to represent the interests of unsecured creditors; major decisions and transactions require notice, hearing, and court approval; an examiner with a specific directive may be appointed to investigate the affairs of the debtor; and the U.S. Trustee and parties in interest have standing to raise and be heard on matters in the case. In recent years many countries have adopted some form of the debtor in possession model either in lieu of or as an alternative to a receiver or administrator. This trend suggests broad recognition of the potential benefits of allowing the honest-but-unfortunate company debtor to lead its own restructuring efforts.

참고자료

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