도산기업의 지배구조에 관한 연구

A study of legal on the governance of rehabilitation procedure corporate in the insolvency law

&nbsp;&nbsp;There were many enterprises went bankrupt by going through the economy crisis in 1997 but the established three laws of insolvency including composition act, bankruptcy act and company reorganization act left much to be desired in many ways to settle increase of insolvency cases rapidly and efficiently.<BR>&nbsp;&nbsp;Referring to the matter, insolvency laws were revised for several times since 1998 and operational defects of procedural insolvency were improved by law with such efforts. However, insolvency acts of those days were difficult to make a decision upon insolvency because of industrial disaster and enterprises using the acts went through difficulties selecting efficient revival ways due to confrontation of opinions between various interested parties.<BR>&nbsp;&nbsp;To make improvement in economic stabilization, impartial and efficient procedures of insolvency is very important. To settle such matters. under the recognition of needs in fundamental improvement, the established three insolvency acts were unified with simplification acts through legislative procedure for four years since 2001 and ’the act on debtor&quot;s reorganization and bankruptcy; what we call "uniform insolvency act&quot; were carried into effect starting from April 4th in 2006.<BR>&nbsp;&nbsp;However, the legislative period were relatively insufficient to prepare the acts comparing to quantity to manage. Moreover, due to available uplift of insolvency procedures or emphasis on effective uplift, it was rather indifferent in practical maintaining equity between interested parties.<BR>&nbsp;&nbsp;Accordingly, this thesis investigates main contents and characteristics of insolvency laws in other advanced countries where the restoration system of enterprises is proceeded as legislation and analyzes whether there are any suggestions in the application of the law in each countries. Centering the ruling class of business failure in accordance with the restoration system of enterprises, it gropes an effective settlement plan which is suitable for our reality and presents a reform measure in insolvency acts that supports effective restoration and lasting development of bankrupt businesses.<BR>&nbsp;&nbsp;Summarizing the points and legislative suggestions of integrated insolvency acts are as follows.<BR>&nbsp;&nbsp;First, variant DIP (debtor in possession system) is introduced and under a unified code of the uniform Insolvency laws, the rights and function of the creditors&quot; council are inadequate. Accordingly, as procedure party concerned, phase of creditors&quot; council should be changed as a creditors&quot; committee like the example from the USA and Germany.<BR>&nbsp;&nbsp;Second, administrators should be selected among third persons who have professional management abilities as a general rule but the reason of facing bankruptcy at businesses do not have insolvent responsibility which is caused by the result of the unpredictable management including radical changes of external environment. Among the existing management, they need to apply management know-how and limits to agreement case at the creditors&quot; council that it should be revised to assign obligators and the exiting management as an administrator.<BR>&nbsp;&nbsp;Finally, for all the interested parties&quot; maximum profit, the revival targets, including obligators and planning speedy and effective performance of insolvency procedures, application of restoration proceedings should be conducted and at the same time, compulsory execution on duties and properties of obligators should be automatically stopped by the way of introducing the American style of Automatic Stay System.