중국파산법상 절대우선 원칙의 개정방향

This paper deals with some issues related to the revision of the article 87 of the China’s bankruptcy Code. This paper examines on the provisions involved protecting disagreed unsecured creditors group in a U.S-China and Korea-China perspective. Based on comparative law analysis, The article 87 section 2 of chinese bankruptcy code can be seemed as a combination of the absolute priority rule and the best interest test. As a result, research which contends that the article 87 section 2 is the absolute priority is not convincing; research that argues the absolute priority rule does not exist in the chinese bankruptcy code is not accurate too. According to absolute priority rule, however, the shareholders’ rights are restricted. The exception that permits shareholders to retain some of their shares even if the creditors does not get full paid is called “new value exception”, which originated from the U.S case law. In china, this exception does not exist in the China’s bankruptcy code. This article inspects the shortcomings of the Art 87 section 2through the risk-benefit analysis approach. The results suggest that the absolute priority rule should be provided completely in the Article 87 section 2. Also, to provide the shareholders with incentive for their re-investment, the new value exception should be adopted into China’s bankruptcy code.