도산법의 몇 가지 현안과 최근 동향 - 기업회생사건의 최근 실무상 쟁점을 중심으로 -

The cases of legal insolvency proceedings, which began with the enforcement of the Bankruptcy Act and the Composition Act adopted from Japan in 1912, increased dramatically after the domestic financial crisis in 1997 and the international financial crisis in 2008. Not only is it difficult to find an economic entity in the market which never faces insolvency of its transaction partner, but the insolvency proceeding has become as common as civil and criminal proceedings. This article deals with how the current Debtor Rehabilitation and Bankruptcy Act (“RehabilitationAct”)waslegislated,evaluationoftheefficiencyoftheoverallcorporaterehabilitationprocessandsuggestionsforimprovements. In particular, the ‘Debtor-in-Possession (DIP)’ and ‘Voluntary Declaration of Bankruptcy’, which are the fundamental and ground-breaking changes introduced by the current Rehabilitation Act compared to the previous laws (individual laws regulating the substance of insolvency and the procedure of insolvency), are viewed positively in that it made the insolvency proceedings more accessible for the of insolvent company and its management and encouraged the use of such proceedings. On the other hand, considering that there still remains many unresolved issues such as (i) potential abuse of the proceedings by immoral majority shareholders, etc. who are greatly liable for the insolvency and (ii) conflict of interest resulting from holding concurrent positions as the representative and the trustee of rehabilitation company, further remedy in terms of the enforcement of the system and improvement through legislation are necessary. In addition, the method of the Court’s evaluation of the going concern value of the rehabilitation company and the determination of the early cancellation of procedure based thereon requires immediate remedy and improvement. With regards to the allocation of the enterprise value, it is necessary to come up with fair and concrete standards for allocating the permanent enterprise value among creditors and shareholders. Lastly, while the fast-track rehabilitation procedure, chief restructuring officer (CRO), rehabilitation consulting, etc., which are currently being tried out in practice, are successful to some extent, continued efforts to remedy their shortcomings such as the distortion of voting right and issues regarding fairness, etc. should be exerted. In particular, the court insolvency proceedings should be improved to become a more accessible and effective way for the applicants of court insolvency proceedings through adopting the merits of the corporate improvement procedure under the Corporate Restructuring Promotion Act such as the procedural flexibility, immediacy, and effectiveness as well as the possibility of funding from credit financial institutions.