간이회생사건에서 공정․형평의 원칙 준수 여부 판단기준으로서의 가칭 ‘종합적 고려법’ 제안

The Seoul Bankruptcy Court has traditionally applied the relative equity ratio method as a practical standard for determining compliance with the principles of fairness and equity in rehabilitation plans. However, this method has been widely criticized due to the fundamental differences between equity interests and creditor claims. Moreover, under the relative equity ratio method, existing shareholders are often disincentivized from initiating rehabilitation proceedings due to concerns about losing control over the debtor company. Even when such rehabilitation plans are approved, shareholders who have lost control may lack incentives to contribute to the company’s restructuring efforts, thereby hindering a successful reorganization. In response, this paper explores the adoption of a “comprehensive consideration method”, which aligns with the Supreme Court’s decisions and evaluates the overall circumstances of the rehabilitation plan to determine compliance with fairness and equity principles. Additionally, a model rehabilitation plan that ensures compliance with these principles under the comprehensive consideration method is proposed. The paper also introduces case studies from the Seoul Bankruptcy Court, where small business shareholders have successfully completed rehabilitation proceedings without losing control of their companies.