상장회사 도산시 증권 투자자의 보호

Upon a company’s insolvency, the company's creditors must be paid in full out of the company's assets before any payment can be made to shareholders. However, if a shareholder of a listed company asserts that her investment was induced by the company's misrepresentation or nondisclosure, she will have a tort claim against the company which may constitute an unsecured claim that would rank equally with other unsecured claims. This would be contrary to the understanding that shareholders' claims would rank subordinated to creditors' in insolvency situation. Although the victims of securities fraud are entitled to compensation, the reliance of the company's creditors on the company's equity cushion should be protected as well. Furthermore, as investors in equity securities have taken higher risk than investors in debt securities, they would not have expected to be treated pari passu with other unsecured creditors. In United States, this issue was hotly debated and resolved by legislation of Section 510(b) of the Bankruptcy Code which mandatorily subordinates shareholders' claims arising from securities fraud. In Korea, although we do not have a statutory provision similar to Section 510(b) of the U.S. Bankruptcy Code,Bankruptcy Court may subordinate such shareholder claims to other unsecured claims pursuant to the rule of fair and equitable treatment in Korean bankruptcy laws.