도산법에 대한 법경제학적 고찰

We attempt an economic analysis of several important topics in bankruptcy law including the structure and justification of bankruptcy proceedings, business valuation and discharge of individual debtors, and critically assess current bankruptcy practices related thereto. For a start, the raison d’＾etre of bankruptcy law as collective collection process is explained using the hypothetical creditors’bargain model of Thomas Jackson, along with its benefits such as reduction of strategic costs, increased aggregate pool of assets and administrative efficiencies. Next, we note that the best interests of creditors test is required in the reorganization to justify its existence as a procedure benefiting debtors as well as their creditors more than the liquidation. We also make some remarks on how the test has been introduced into the practice and what problems remain to be addressed in its application. Third, after illustrating the point that priority among claimants necessitates business valuation in the reorganization, we describe, and make some comments on, the valuation mechanisms, both of the one as indicated under the Korean law and the other as actually adopted in the practice. Fourth, we explain“ option approach”and“ dilution mechanism”as ex post alternatives to the business valuation, and explore their possible adoption in the practice by analyzing Kukjesangsa case. In addition, “chameleon equity”and “bankruptcy contracting”are also explained as ex ante alternatives. Last, after showing the difference between the individual bankruptcy and corporate bankruptcy, we show the historical development of discharge and its economic justification.