도산절차에서의 법인격 부인-미국의 실질적 합병 이론을 중심으로-

'Substantive Consolidation' is a doctrine developed by U.S. courts for bankruptcy cases. Under this doctrine, the bankruptcy court may order the pooling of assets and liabilities of two or more entities, so that the liabilities of the entities involved are satisfied from common pool of assets created by consolidation. The Substantive Consolidation is not specifically authorized by the Bankruptcy Code; rather, it is based on courts' general equitable powers. For many U.S. cases, the courts declared that as the substantive Consolidation is extreme and imprecise remedy, it should be employed only rarely and as matter of last resort after considering and rejecting other remedies. The expectation of commercial markets and market players that the court would respect entity separateness should not be frustrated absent circumstances where equitable remedy is called upon. Substantive Consolidation may affect (i) the tiered corporate structure and (ii) the use of special purpose vehicles in securitization and other structure financing, as well as project financing transactions. Futhermore, Substantive Consolidation may bring international insolvency issue when a group of multinational members is involved in insolvency proceeding. Although it may be possible for Korean courts to exercise the same power as Substantive Consolidation without express legislative authorization, it would be desirable to have a specific provision in the bankruptcy code setting forth the requirements and effects of Substantive Consolidation.