기업회생절차의 새로운 패러다임

By the enactment and implementation of Korean New Insolvency Law as of 2006, the old Corporate Reorganization Procedure where the management had been changed in most cases was combined to the new Business Rehabilitation Procedure based on Debtor-In-Possession(DIP). But the Creditors' Committee which is designed as a watchdog against DIP in New Insolvency Law has not yet been activated. The American Business Reorganization based on DIP (Ch. 11 in the U.S. Bankruptcy Code of 1978) that Korean Business Rehabilitation Procedure modelled after had been through the 1980's (debtor in full control without attention from creditors) and reached the current stage (creditors in control, being used even by the federal government). Business Rehabilitation Procedure can rehabilitate the ailing businesses and maximize creditors' return, which are both sides of the coin. To accomplish those purposes, the following three factors are needed. Redefining the roles of participants, quick process, and DIP financing. The Court is judging and supervising the Business Rehabilitation Procedure which is the forum where the issues of business restructuring are discussed and implemented between the creditors and debtor. Creditors, organized in the Creditors' Committee, can early participate in the Business Rehabilitation Procedure actively and initiatively, and then lead it into success. And to preserve and increase the going-concern value, rehabilitation procedure should proceed quickly through Fast-Track Program pre-confirmation, and go for the debtor company's quick return to market by early case closing post-confirmation. If a large portion of the overall debt is converted into equity, the control right to the debtor company would be transferred to creditors which hold a controlling equity stake. But if a debtor company in the financial distress files rehabilitation procedure with court timely and makes use of it as a method improving the financial structure by fast confirming the simplified rehabilitation plan lengthening the term of debt and reducing the interest, there couldn't be the transfer of the control right, but the supervision of the implementation of the plan. Now it is the time to understand that the Business Rehabilitation Procedure is for the debtors (rehabilitating the failed businesses) and also for the creditors (maximizing their return), and to reestablish the adequate roles of the participants.