기업구조조정촉진법상 반대채권자의 채권매수청구권의 문제점과 영국의 정리계획(SoA)식 조별 결의 도입 제안

This article compares the insolvency systems of Korea, the United Kingdom, and Australia with respect to a restructuring system that lies in the middle of workouts and reorganization. In accordance with the Corporate Restructuring Promotion Act (“CRPA”), there are several problems related with the dissenting creditor’s right to sell its claim to consenting creditors of the company restructuring plan in the Financial Creditors’ Meeting. It is actually heavy burden for consenting creditors to purchase dissenting creditor’s claims. In addition, the method to calculate the price of the claim to be purchased is not indisputably accurate. Under the Korean CRPA, an independent third-party insolvency practitioners is not appointed as administrator, and the existing directors continue to operate the company’s business. In this aspect, the Korean CRPA procedure is closer to the Scheme of Arrangement (“SoA”) procedure and the restructuring plan procedure of the UK and the SoA of Australia comparatively than to the Company Voluntary Arrangement (“CVA”) of the UK and the voluntary administration and Deed of Company Arrangement (“DOCA”) procedure of Australia. Nevertheless, there is no requirement for prior approval of the court for the implementation agreement of the company restructuring plan under the Korean CRPA. Instead, it seeks to protect the rights of the dissenting creditor by acknowledging the dissenting creditor’s right to sell its claim to consenting creditors. The shortcoming of the CRPA is that the court does not involve in the confirmation of the company restructuring plan, and the court can review the company restructuring plan only if a lawsuit is filed after the resolution of the company restructuring plan in the Financial Creditors’ Meeting. In the case where a dissenting creditor or the debtor company files a lawsuit to the court for revocation of the resolution after the company restructuring plan has been resolved at the Financial Creditors Meeting, procedural uncertainty exists. If the court might decide to revoke the resolution due to breach of the law, the procedure might be significantly delayed. Thus, it is necessary to review adopting the court’s prior approval of the company restructuring plan or the classification of members and creditors for voting purposes, referring to the SoA procedure and the restructuring plan procedure of the UK and the SoA of Australia. If all types of creditors make a resolution in one class, there is a high possibility that the vote will be resolved according to the position of the majority creditors and minority creditors will always lose. By separating the class of creditors who have common rights but are a minority, minority creditors could be protected.