도산법상 지배주주채권의 후순위화 법리에 대한 연구

This article examines shareholder loan subordination in relation to bankruptcy law in the United States and the Insolvency Act in Germany. Although one of the basic purposes of bankruptcy law is equality of distribution, both legal systems have certain provisions to treat differently the shareholder loan in bankruptcy or in the vicinity of bankruptcy. However, the rationale behind the rules differs. Taking a comparative approach, the rationale for the subordination in the US legal system is mainly to rectify the injured creditors. In Germany, however, the rationale hinges on the responsibility of the shareholder, particularly when they decides to make a capital contribution while the firm is close to bankruptcy or overindebtedness. Aside from the equitable subordination, other doctrines such as recharacterization and equitable disallowance in USA are distinguished by the court. In recharcterization, for example, the creditor has ownership interest but not debt claims and is subordinate to all claims under the rule that debt has priority over equity. In Equitable Disallowance, the claims have disallowed in extreme situation but this doctrine has been rarely used. Although the Bankruptcy Code §510(c) stipulates the equitable subordination, it does not elaborate on the requirement for application. Therefore, in the Mobile Steel case, the court had developed a three part test to determine whether the equitable subordination under §510(c) is applied: 1) The claimant must have engaged in some type of inequitable conduct; 2) the misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant; and 3) equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Code. By contrast, Germany, the subordination will automatically apply to all shareholder loan under the §39(1)5, of Insolvency Act in Germany, however, there are two exceptions. The first exception is the shareholder who are not directors of the company and do not hold more than 10% of the registered capital. Thus, the subordination applies to shareholders who, at least have a significant influence on the management of the company. The second exception applies in the course of rescue attempt by an investor who previously did not hold shares in the company. Under the Debtor Rehabilitation and Bankruptcy Act in South Korea, in rehabilitation procedure, there is an exception to §218 principles of equality. §218(2) states even if persons who hold rights of the same kind, they can be treated differently, when the principles of equity are not undermined, then the principle of equality shall not be applied(ʻʻEquitable Exceptionʼʼ). However, in bankruptcy procedure, the equitable exception does not exist. Hence, this article recommends to enact the equitable exception in General Provision and equitable subordination and its requirements in sub-section in Debtor Rehabilitation and Bankruptcy Act.