중국 회사정리절차 중의 회사정리계획 연구

The Democratic People’s Republic of China enforced its <PRC Law of Enterprise Bankruptcy> since June 1st. 2007. In enacting the enterprise bankruptcy reorganization(bankruptcy protection) code, it is available to any business to stay in business reorganizing the company’s contractual and debt obligations subject to the oversight and jurisdiction of the court. As the court can grant complete or partial relief from most of company’s debts and its contracts, so that the company can make a fresh start rather than being dismantled. In contrast, the conventional Bankruptcy Code solely governs the process of a liquidation bankruptcy without any consideration of the “reorganization” opportunity. It follows that the success or failure of the process depends on a troubled company’s reasonable, just, and affordable proposal of reorganization plans. Proposed plans, therefore, in order to be confirmed by the creditors as well as the courts, should satisfy the best interests of the creditors and the court through a number of criteria. In accordance, the overview of the DPRC’s enterprise reorganizationcode is beneficial to understand and foretell future development of Bankruptcy Code, which permits reorganization under the <PRC Law of Enterprise Bankruptcy>. The troubled business files an attempt to stay in business while a bankruptcy court supervises the reorganization of the company’s contractural and debt obligations. In this way, debtors, creditors, and the third interest parties(unsecured creditors) agree to a troubled company to continue running, cancel some of its debts, and give ownership of the newly reorganized company to the creditors or to the third interest parties whose debts were canceled. In this perspective, it may be economically efficient. In this code, debtors have the exclusive right to propose a plan of reorganization for a period of time based upon its current business status quo as well as prospect of the business. In most cases the debtor remains in control of its business operations as a “debtor in possession”, and is subject to the oversight and jurisdiction of the court, among other things, creditors also must vote to approve the plan of reorganization before it gets court decision. In enacting Enterprise Reorganization of DPRC, Chinese economy will be on the better position of the development process of the market economy system. Furthermore, this law will contribute for Chinese economy to labor its business operations as well as the system upgrades of the oversight and jurisdictional procedures. Subsequently, this newly adopted jurisdictional codes complies with the global standard of the bankruptcy protection laws and provides for fair and equitable treatment of all parties in interest, for examples, the composition and submission of the reorganization, the structures of the chapters and the sections, voting process and the priority scheme of the jurisdictional decision, and the completion of the executory contracts. Among all other things, however, it shows DPRC’s legal characteristics over the rating creditors in accordance with statutory priorities, more protection articles of labor, non-legalization of the execution process. In achieving the goal of the code, however, it fails to providing strong legal basis to mitigate the limit of the related laws such as Commercial, Security Exchange, and Monopoly Regulation laws. A more flexible consideration over M&A, among other things, which might be the most efficient and useful legal tools in the process of the reorganization is not fairly implemented. Enacting these legal supports, the laws would strengthen its support for a fresh start of the entities, labor union protection, and reallocation of the business assets.