실무 분석에 근거한 회생계획 강제인가의 개선방향

The purpose of this study is to empirically analyze the practice related to the requirement of cramdown of the reorganization plan, and to derive legislative improvement directions based on this. The part where the requirements for cramdown are not clearly stipulated by the law has been materialized through the judicial discretion according to precedents. The problem with the current legislation on cramdown is that the term “fair and equitable” as a requirement both for the confirmation of the reorganization plan and for cramdown is defined in confusion. The practical requirements or determinants of cramdown have not properly reflected in the legislation. The practical requirements or determinants of cramdown can be effectively derived through analyzing the cramdown cases and practice that have been formed so far. The legislation that properly reflects these accumulated practices will secure the normative power and lead the development of practice. Among the requirements of cramdown derived from practical analysis, the aspect of protection of rights is to enable secured creditors to obtain preferential satisfaction from the value of the collateral as soon as possible in addition to meeting the requirements for confirmation of the plan. For unsecured creditors, it is to grant the measures to reinforce the satisfaction of rights in addition to cash payment. In addition to the legality of the contents of the reorganization plan, the validity of the discretionary judgment on cramdown needs to be supported by the consent of a number of creditors or shareholders who should accept the change of rights according to the plan. In addition, it is necessary to improve predictability by stipulating factors to consider whether cramdown or not. Furthermore, procedural improvement measures should also be considered to strengthen the legitimacy of the cramdown system.