기존 경영자 관리인 제도의 明暗

The Debtor Rehabilitation and Bankruptcy Act (the "Act") which was enforced in April 2006 adopts modified Debtor in Possession (DIP) system in connection with the corporate governance of a company for which a rehabilitation procedure is commenced to guarantee that the incumbent manager continues to have management right by appointing him as receiver unless there are exceptional circumstances such as "the bankruptcy of a company was caused by the diversion or concealment of assets or poor corporate governance by the incumbent manager, for which he is mainly responsible." The main purpose of this system is to make "more" insolvent enterprises subject to rehabilitation procedures "more quickly" by preventing hindrance to efficiency and decline in the value of enterprises resulting from severance of management and by dispelling worries about deprivation of management right. There has been a sharp increase in corporate rehabilitation cases since the enforcement of the Act. Such increase can be viewed to have resulted from a combination of the recent economic crisis and the effect of abolition of composition procedure, but it is also true that more and more small businesses have come to take advantage of rehabilitation procedures thanks to the introduction of modified DIP system. However, how to keep a balance between "non-neutrality" or "partiality", the characteristics of DIP, and the status of "public trustee" of all the interested parties such as creditors remains an unsolved problem. Currently, four years after the enforcement of the Act, the role of creditors who should check the DIP fails to meet the expectations; the number of cases in which the incumbent manager are called to account declined compared to the period when the Corporate Reorganization Act was in effect; and there are some instances in which the appointment of the third party receiver is withheld due to the concern over decline in the value of enterprises caused by severance of transaction relationships. As to the exercise of avoidance right, since the previous acts of oneself or colleagues are avoided, in certain situations it is difficult to expect a fair exercise of the right. Also, while, in order to guarantee the management right of the incumbent manager, M&A is carried out only for the enterprises which are hard to survive independently or uncertain to be rehabilitated in light of the results of implementation of rehabilitation plans after the confirmation is granted, the early termination system of rehabilitation procedures are rarely used. Therefore, the number of the companies for which the confirmation is granted is increasing, which leads to the increase in burden of management and supervision borne by the courts. The author suggests a number of plans such as substantial provision of information through investigation report and other various kinds of reports, etc., vitalization of the meeting of interested parties, appointment of neutral auditors before the confirmation is granted, securing a pool of diverse and competent third party receiver, promotion of responsible and transparent management, etc. as the complementary measures against the problems that have been revealed so far.