회생계획안의 인가 -기업가치의 분배를 중심으로-

Business reorganization is a procedure in which a business entity in a financial distress reshuffles the debt structure, continues in operation instead of being dismantled and soled in piecemeal, and distributes the reorganization value among secured creditors, unsecured creditors and equity holders. A plan of reorganization is a kind of collective agreement that stipulates the amount of the value to be distributed, the time when and the method by, such distribution would be made. A plan is accepted in a class of claimants if those claimants who hold absolute majority of money amounts of allowed claims vote to accept the plan. However, the court may confirm a plan of reorganization over the objection of classes of creditors by inserting a protection clause (cram-down clause) which gives better treatments to the dissenting classes than the original plan. A court-approved plan has a binding force on all the claimants and classes even in cases where they did not accept the plan. This article focuses on the distributive issues in the confirmation of a plan. Critical factors for a successful reorganization plan include proponents of a plan, leverages of parties to keep the power balanced against the proponent, provision of information to voters for informed decisions, classification and requirements of confirmation. Such items should be codified in a way that each party has an equal voice and motives to make the reorganization procedure successful, which will guarantee the plan be fair and equitable. In this context, this article analyzes the clauses of the Business Reorganization and Bankruptcy Law of Korea concerning these issues and suggests a statutory reform. The Business Reorganization and Bankruptcy Law of Korea manifests criteria by which a going-concern value of a reorganized debtor should be distributed; best interest of creditors test, fair and equitable difference in the treatment of different classes, equal treatment of claimants in the same class and protection clause for dissenting classes. This article aims to clarify the meaning of these doctrines and their scope of application, and concludes that a Korean version of “absolute priority rule” cannot be drawn from the “fair and equitable difference in the treatment of different classes” doctrine. However, this article is opposed to adopting “absolute priority rule” of American Bankruptcy Law either, because the “dissenting class protection clause” in the Korean law is better than American “absolute priority rule”.