회생절차 M&A에 관한 법리적 고찰

The Act on Debtor's Reorganization and Bankruptcy(what we call “unified insolvency act”) was enacted in 2005 and has been enforced since 2006. There were much improvement of the schemes and the practices of courts on insolvency procedures. As the result, current insolvency procedures work more promptly and smoothly as compared with what they did. M&A would be put to practical use as a substitute measure, if it is difficult to make a reorganization plan for self-rehabilitation or it is obscure to conduct the approved reorganization plan. However, there are some problems on the schemes and practises of M&A in the reorganization procedure. One of important distinctions of the unified insolvency act is to assign the debtor for the legal trustee with first priority in the reorganization procedure. It would be an obstacle to pushing forward M&A in reorganization procedure. And an acquisition or a business-transfer has often been used as the measure of M&A in reorganization procedure. Other measures such as a merger could be efficient on M&A in reorganization procedure. Furthermore, the income from discharge of indebtedness and the income from debt-equity swap need to be equally treated for tax purpose in relation to M&A in reorganization procedure. For these reasons, the current schemes and practices on M&A in the reorganization procedure should be improved for enhancing its frequency and probability. In this article, firstly, utilities and types of M&A in the reorganization procedure are explained. Secondly, this article analyzes the processes of reorganization M&A and its principal legal issues. Finally, some improvement opinions for enhancing the frequency and the probability of M&A in the reorganization procedure will be presented.