회생절차가 개시되고 관리인이 선임된 후에도 채무자가 회생절차개시결정에 대하여 즉시항고할 수 있는지 여부 - 대법원 2021. 8. 13.자 2021마5663 결정을 중심으로 -

Debtor Rehabilitation and Bankruptcy Act Articles 13(1) and 53(1) stipulate that anyone who is interested in an order for relief can file an immediate appeal against it. In this context, 'interests' means legal interests, and a debtor, deprived of the authority to conduct business and manage/dispose of properties, is a key stakeholder in the order for relief. There is no sign of profound disaccord over it across all insolvency procedures among South Korea, Japan and United States. Nevertheless, the Busan High Court Changwon Panel Order 2021Ra10010 Dated March 30, 2021 rejected the immediate appeal filed by the former management on behalf of the debtor(corporation), finding that the authority to conduct business and manage/dispose of properties is exclusively vested in the trustee. However, the authority of a trustee is limited to managing and disposing properties, and a debtor can co-exist with a trustee as separate entities. In case of a debtor being a juridical person, the former management can retain its status even after the order for relief. It should be also taken into consideration that it is hard to expect a trustee to appeal the order for relief, by which the trustee himself was appointed. Therefore, a debtor can independently file an immediate appeal against an order for relief even after a trustee is appointed. By the same token, the Supreme Court of Korea, reversing and remanding the Busan High Court Changwon Panel order, ruled that a debtor has legal interests in the order for relief, and a debtor (in case of juridical person, the former management on the debtor’s behalf) can file an immediate appeal against the order for relief(Supreme Court Order 2021Ma5663 Dated August 13, 2021) of which the author concurs with it.