최근 미국 기업회생절차의 개정 논의

American bankruptcy system, especially the Chapter 11 of the US Bankruptcy Code might be arguably the most advanced and sophiscated reorganization procedure in the world. Therefore, its global impact should not be underestimated. Korea’s reorganization procedure is modeled on Japanese system, which imports the US Bankruptcy Code Chapter 11 after the WW II. In this regard, Chapter 11’s reform dabate could suggest an opportunity to reconsider our own reorganization procedure. In December 2014, the ABI released its Final Report and Recommendations. It is the end result of the ABI “Commission to study the reform of Chapter 11”’s extensive three-year study, which is consisted of high-regarded, experienced bankruptcy professionals selected by the ABI. The report included several interesting suggestions for the US Chapter 11 reform. The author, who has been interesed in this subject several years, is trying to introduce the key contents of the suggestions, and discuss them in respect of Korean bankruptcy law. Among the suggestions by the ABI, the author focuses on the “estate neutral”, “redemption option value,” and “equity retention plan” for small and medium sized enterprises. First, there is some need for the neutal party in the process of the negotiation for the reorganization plan. However, the author is not so sure whether there are the meaningful negotiations among the interested parties in Korean reorganization process, which is the central premise of the estate neutral. Second, the “redemption option value” is very innovative concept, but it clearly needs some adjustment considering the security holder’s interest. Third, the equity retention plan is premised upon the absolute priority rule, and Korea does not adopted it. That being said, Korea also needs some incentives for the owner/manager of the small and medium sized enterprises.