기업구조조정 시 채권자이의절차에 관한 연구

The Korean Commercial Code (“KCC”), unlike the Delaware General Corporation Law, has detailed provisions for protections of creditors facing merger and demerger (i.e. statutory corporate division). Some scholars have been skeptical on those mandatory boilerplate provisions, which may provide either excessive or insufficient protections for creditors. The US legislations, noting the heterogeneous nature of creditors, tend to let the creditors and debtors design their own protection scheme preparing for future M&As. The paper, however, sees the virtue of current provisions, which were originated from the continental Europe and aims to suggest some incremental changes. The major findings of this paper are as follows: First, current personal notices which inform creditors of their rights in the M&A process are excessive and time-consuming. Especially, a creditor of a listed company may easily get access to the M&A information. A disclosure at the official website (e.g. DART operated by the financial supervisory authority) may be sufficient for information delivery. Second, tort victims may not be given appropriate protections through a demerger process. Under the KCC, a divided company is jointly and severally liable with newly established company (which receives assets from the divided company) for any claim antedating the demerger. The liability, however, is separated if some protective prior steps are taken by the divided company. The problem of such liability-severance process is tort victims cannot always secure a guarantee or a pledge. The loophole is serious where the divided company transfers almost all of its good assets but tort victims cannot exercise their claims against newly established company, due to the liability-severance process. This paper suggests that tort victims with just cause not to respond to liability-severance process should not be subject to liability-severance. Third, excessive creditors protection provisions should be revised as well. A creditor should not enjoy a windfall thanks to M&A – under the KCC, an unsecured creditor may become secured creditor, just because the debtor company get through M&A. Only the creditors whose claims face more risks or uncertainty should be eligible for additional protective safeguards. Finally, the legal implications of creditor protection process should be revisited. Most scholars believe that the lack of the process may lead to the nullification of whole M&A deals. However, no M&A has been found null and void just because the creditor protection process is not completed. The delinking of the M&A’s validity and the adequacy of creditor protection process is worth further considerations.