도산법 분야의 최신 판례와 실무례

After the so-called IMF Financial Crisis, the number of bankruptcy cases grew tremendously. Since then, lots of efforts have been exerted to make bankruptcy procedures more speedy and efficient and to modulate reasonably the conflicting interests, which have been reflected in judgments of courts of various levels and the practice. This paper tries to make analysis on some of recent important Supreme Court judgments regarding bankruptcy and introduce related court rulings and the practice, in order to eventually help recognize the current situation and problems of bankruptcy procedures of our country. Among recent judgments of the Supreme Court, those regarding regulation of conflicting interests and M&A schemes established in corporate reorganization procedures are of importance Supreme Court 2005DA18962(2th May, 2006) is related to rights of secured creditors. The judgment set out the legitimate method of calculating the amount of secured credit, when the collateral is stocks and the way to evaluate the surety obligations. That the Supreme Court deems that it is inevitable for trustees and court to exercise some degree of discretion in calculating is also the important aspect of the judgment. There are many judgments regarding rights of unsecured creditors and relationship between an unsecured creditor and the debtor, among the recent important Supreme Court judgments: Supreme Court 2005DA35851(29th March, 2007) regarding the scope of contracts applicable to clauses of executory contracts; 2005DA38263(6th September, 2007) regarding the effectiveness of a bankruptcy clause; 2004DA10299(10th November, 2006) regarding the criteria to determine whether the trustee can be deemed as a third-party protected by misstatement conspired in advance by parties, 2005DA15598(en banc, 28th September, 2007) regarding difference between set-off and reduction; 2006DA83130(30th March, 2007) regarding the status of a surety in bankruptcy procedures. 2005DA28363 is important in that it ruled that a bankruptcy clause can be effective for the first time. But the Supreme Court made requirements quite narrow for a bankruptcy clause to be effective. So the effectiveness of a bankruptcy clause will remain as an issue nevertheless. By 2004DA10299, the Supreme Court made it firm that trustees can be protected as a third-party to a misstatement of Section 108 of the Korean Civil Code. 2004DA10299 requires every creditor is of no knowledge that the contract is void by virtue of Section 108 of the Korean Civil Code. Supreme Court 2007DA1753(15th November, 2007) struck down a provision of the Listing Rules promulgated in 2003 by the Security Committee, which requires the committee to delist when a corporation was filed for a reorganization procedure. 2007DA1753 provided guideline in discriminating a bankruptcy procedure operated by court and a bankruptcy procedure operated by entities other than court. Supreme Court 2007MA919(11th October, 2007) declared that a trustee can try an M&A at a time before the conformation of the reorganization plan. Regarding an M&A in reorganization procedures, two issues - the rights of present shareholders and the status of so-called credit to be swapped - raised many problems. This paper describes the practice and court rulings regarding the two issues.