회생회사 M&A 절차에서 주주의 지위

One of the practical issues in the merger and acquisition of a company under the rehabilitation proceedings has been the status and rights of shareholders of such company. Through examination of this issue in detail, this article aims to make suggestions regarding improvement of the current practice under the Debtor Rehabilitation and Bankruptcy Act (DRBA). There were several interesting domestic cases involving M&A of a reorganization company or a rehabilitation company, and most of these cases dealt with the situation where there were only abstract or general provisions with respect to issuance of new shares in the rehabilitation plan that was adopted for the company, and the company's assets exceeded its debts after adoption of the rehabilitation plan at the time of the M&A. The key legal issues reviewed in the above cases were (i) whether an amendment of the original rehabilitation plan would be necessary if the receiver intended to sell the company by issuing new shares to a third party, even when the assets of the company as was were sufficient to pay off all its debts; and (ii) whether it would be necessary to have a resolution by the shareholder group if the amendment of the original rehabilitation plan was necessary. However, this issue is more fundamentally related to how to determine the management control of a company in the rehabilitation plan. In this article, I have reviewed recent domestic M&A cases and related court precedents as well as relevant theory and practice in the US and Japan. It seems that under the current practice in Korea, the issue of how to determine or finalize the corporate control of a company under the rehabilitation proceedings is not fully or properly reviewed at the time of preparation and approval of the original rehabilitation plan, and there is a lack of agreement or common understanding among the interested parties regarding the issue. For this reason, while there has been much improvement in most aspects of the M&A of a rehabilitation company, protection of shareholders' rights has been frequently neglected and not duly considered during the M&A proceedings. It would be necessary to consider the management control structure of a company under the rehabilitation proceedings at the time of preparing and approving the original rehabilitation plan so that it would not be improper to allow the shareholders of the company who came to own the company under the rehabilitation plan to reap the benefits of successful rehabilitation proceedings. More specifically, rights of shareholders who came to hold the shares of the company as a result of debt-equity swap should be protected to the maximum reasonable extent, unless such protection would hinder the overall rehabilitation of the company. How much power and authority should be given to the shareholders of a company during an M&A of the company under the rehabilitation proceedings would continue to be a major issue for companies undergoing the rehabilitation proceeding under the DRBA. If the existing management becomes the receiver and early termination of the rehabilitation proceedings become more common under the DRBA, there might be substantial conflict regarding the control of the company between the receiver or former shareholders on one side and creditors on the other side from the initial drafting of the rehabilitation plan. Under such circumstances, the court's role in mitigating such conflict and determining the management control structure would become more vital in preparation, resolution and approval of the rehabilitation plan. In summary, the issue of defining the management control scheme in the rehabilitation plan and protecting the rights of shareholders during the M&A process for a company which has successfully turned around in the rehabilitation proceedings would become more important.