중소기업 회생절차의 특수성과 개선방안

Small businesses are quite important in national economy. However, small businesses are facing much tougher conditions operating their businesses. Small business rehabilitation cases have occupied the most portion at the bankruptcy court. Before prescribing suggestions for improving the small business rehabilitation procedure, I will first identify the attributes of small business itself and the rehabilitation procedure regarding small businesses. Among these are the lack of creditors' participation, the scarce resources necessary for rehabilitation procedure, the difficulties in DIP financing, the over-indebtedness of managers, the lack of the reliable financial record, the non-separation of ownership and management of the businesses. The current Debtor Rehabilitation and Bankruptcy Act gives little consideration on small business rehabilitation. The Act has only a few statutes regarding small businesses. However, by examining the history of U.S. bankruptcy law, especially the discussions on improving small business reorganization procedure, we can learn that small business rehabilitation needs special treatment in accordance with its attributes. From this perspective, I will explain the consulting program for the rehabilitation of small businesses, which is now a pilot program in Seoul Central District Court. In addition, I will make some suggestions concerning improvements for small business rehabilitation, such as making the creditors' committee more active by employing the Chief Restructuring Officer, holding the initial debtor's interview attended by the stakeholder, pursuing the policy of Debtor-in-Possession, ensuring the modest retention fee for the DIP, the effective supervision of small businesses operations, and the reflection on the principles of equity as the requirement of the plan confirmation. Furthermore, regarding amendments to the Debtor Rehabilitation and Bankruptcy Act, I maintain that adding some statutes concerning small businesses are better than establishing the separate procedure. I will also argue that it is necessary to conduct the empirical survey for drawing the line between small businesses and the rest, and it would help facilitate the procedure to make holding the 1st stakeholders' meeting optional. In conclusion, I stress that successful small business reorganization is based on maintaining and utilizing the human capital of small business managers, the bankruptcy court should facilitate small business rehabilitation by employing much simpler procedure when the debtor has a reasonable prospect of reorganization, and will propose systems and operations which will get small businesses out of the rehabilitation procedure with more speed when the debtor does not have that prospect.