도산에 근접한 시기의 이사의 의무

In most countries, including Korea, it has been generally pointed out that directors and shareholders of a company approaching insolvency, who have conflicting interests with creditors, tend to unreasonably pursue self-rehabilitation or unjustifiably delay the petition for commencement of insolvency proceedings, thereby causing losses to creditors and other stakeholders of the company. In an effort to resolve such problem, in July 2013, UNCITRAL amended the Legislative Guide on Insolvency Law by adding, as Part four, a new legislative guide on “directors’ obligations in the period approaching insolvency.” The purpose of this article is to introduce and review the contents of the recommendations included in Part four of the Legislative Guide, and to provide a platform for further study on the improvement of the insolvency related laws of Korea. This article first performs comparative review of major legal regimes, such as Germany, England and the United States of America, and then analyzes the recommendations of Part four as well as the proposed amendments to the Legislative Guide with respect to the obligations of directors of enterprise group companies in the period approaching insolvency. Further, after analyzing Korean law implications of Part four, this article concludes that as Korea does not have statutory provisions which specifically and directly deal with the directors’ obligations in the vicinity of insolvency, it would be necessary to positively consider adopting the new legislative guide by legislation. The author notes, however, that how and to what extent to adopt the recommendations of Part four would be subject to in-depth review of the current insolvency regime, corporate governance, social and economic systems for the support of corporate rehabilitation, problems associated with personal guarantees issued by directors for the debts owed by their companies, etc.