기업구조조정과 이사의 신인의무: 미국의 논의를 중심으로

A corporation in crisis creates a stressful atmosphere in which to make reasoned business decisions. There is no single checklist or form plan that directors in this environment can follow to maximize the prospects for a successful turnaround. The zone of insolvency adds to the uncertainty of directors who face dramatically deteriorating corporate financial conditions. The complication posed by the multiple, non-operationalized definitions of zone of insolvency affects company stakeholders by the resulting damage to the company’s decision processes and increases in transaction costs. This paper reviews recent Delaware case law decisions involving zone of insolvency, identifies directors’ and officers’ fiduciary duties owed to stakeholders as the company operates in the zone, and proffers an approach to improving the operational definition of zone of insolvency that eliminates the fuzziness and helps clarify the leadership priorities of a financially troubled companies. The Delaware Court of Chancery has used two methods to effectuate the duty shift in distressed and insolvent corporations. The first is an affirmative shift in directors’ fiduciary duties from equity holders to creditors. The second allows directors the freedom to act on behalf of creditors (though duties remain to the common shareholders) so long as equity holders receive the substantial equivalent in value of what they had before. Current fiduciary duty framework in Korea does not protect minority shareholder and creditors rights adequately. As such, legislators should provide more definite and less conflicted guidance for directors in Workout.