지배주주의 사익편취에 대한 도산법적 해결방안: 주주채권의 후순위화를 중심으로

Recently there have been an increasing number of controlling shareholders who acquire dual shareholder/creditor status by loaning funds to the corporation. Emergence of these controlling shareholder/creditors has some benefits from corporate finance perspective, but can be problematic because the controlling shareholder can extract private value by abusing his/her control power and at the same time avoid the negative consequences of corporate bankruptcy with his/her claim priority. For example, the controlling shareholder can loan funds to the corporation with conditions extremely unfavorable to the borrower－high interest, collateral, priority. During the term of the loan, the controlling shareholder/creditor can expropriate corporate wealth given the loan’s lopsided terms, and when the corporation suffers bankruptcy as a result of the loan, the controlling shareholder/creditor can recover his/her funds with the loan’s priority. In order to resolve this problem, this Article examines whether a loan from a shareholder who has abused his/her controlling influence should be subordinated in bankruptcy and how the subordination doctrine can be adopted in Korean jurisprudence in the absence of legislative amendment. Currently, the Korean Debtor Rehabilitation and Bankruptcy Act (‘Debtor Rehabilitation Act’) addresses this shareholder expropriation problem through avoidance power, but the avoidance power has limitations because it must balance the need to recover a debtor’s assets and the need to protect good faith transactions. Subordination can complement avoidance power in solving this shareholder/creditor expropriation problem. However, unlike in the American or German bankruptcy proceedings, there is no express statutory authorization for subordination of shareholder loans in Korean bankruptcy proceedings. Therefore, shareholder loan subordination can occur only through legislative action or through interpretation of current statute. In the absence of legislative action, we argue that it is possible to adopt the subordination doctrine through application of provisions governing reorganization process and the principle of good faith and fair dealing. In particular, in contrast to existing studies that have mostly focused on legislative change as the only possible avenue through which subordination can occur, by showing the need for subordination to complement avoidance power and by applying existing law to enable subordination of shareholder loans, this Article proposes a novel path forward for Korean bankruptcy law to respond to the shareholder/creditor expropriation problem.