선박금융과 도산절연에 관한 소고 - 법인격 부인론을 중심으로 -

Structured Finance as a financial method of obtaining ships in our shipping business does play an important role through establishing a separate Special Purpose Company and remoting bankruptcy risk of shipping company from SPC, and providing an opportunity of a better financial condition to such a shipping company relying upon a good security package. Recently, we faces a possibility that several shipping company and ship building company enter into an insolvency proceeding, and the question arises whether an initially intended bankruptcy remoteness could be implemented well. Korean Court made an important decision that creditors against SPC in Structured Finance should be protected in compulsory auction procedure apart from the insolvency proceeding of Hanjin Shipping Co., Ltd. However, bankruptcy remoteness will be an issue continuously in insolvency proceeding of Shipbuilding company and shipping company, so it is not too much to say that bankruptcy remoteness is worth of a deep consideration. Shipping company would purchase ships through Structured Finance and make an effort to create a profit, and SPC is very much related to such a shipping company in terms of issuing stocks, signing a charter contract, and making a payment of charter hire and existing a purchasing option of ships once such charter hire payment obligation is done. Such a relationship is sufficient to invoke an issue of piercing the corporate veil and substantive consolidation issue in insolvency proceeding. Here, I’d like to emphasize that the issue of piercing the corporate veil and substantive consolidation issue should not be incorporated to Structured Finance, in terms of that relevant parties initially intended a bankruptcy remoteness as a basic purpose in Structured Finance. In order words, Structured Finance should be recognized as a limitation or marginal boundary of the piercing the corporate veil and substantive consolidation in an insolvency proceeding.