구 기업구조조정촉진법의 주요 쟁점과 재입법 방안


Major Issues and Re-legislation Strategies of the Past Corporate Restructuring Promotion Act


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Corporate Restructuring Promotion Act (hereunder, 'Restructuring Act') was legislated twice in Korea as a temporary law with the preset enforcement period in Korea. The first (hereunder 'the 1st. Restructuring Act') was legislated on August 14, 2001, and was in act until December 31, 2010. The second Restructuring Act (hereunder 'the 2nd. Restructuring Act') established on August 3, 2007 was lasted until December 31, 2010. Re-legislation of the act was promoted before the expiration at the end of 2010. However, the proposal could not be reviewed and resolved by the lawmakers due to raised issues on the act and circumstances of the National Assembly at that time. Based on this background situation, the study is conducted for the necessity of Restructuring Act, and the strategy in case of re-legislation of the act. The first of all, there were issues on the past Restructuring Act regarding the legal binding of the Governor of Financial Supervisory Service (FSS)'s request to postpone the exercise of debt rights of creditor banks. And, the other part of the issues was on the compulsive application of the request by the Governor of FSS to creditors who were against the resolution made by councils of creditors. Restructuring Act contributed a great deal to overcome the economic crisis and to propel corporate restructuring processes efficiently. Also, the necessity of re-legislation of the act still remains because the possibility of economic crisis is always existing not only in the present, but also in the future. Therefore, it is considered to be desirable to establish Restructuring Act not as a temporary, but as a permanent law. By adapting the Automatic Stay System currently implemented in various developed nations including the U.S., the requirement and the effectiveness of the re-legislated Restructuring Act should effectively be reinforced to suppress chaos. And, the compulsive application of postponement of the debt right to the creditors who are against the resolution made by councils of creditors as in the past act is desirable. Also, the disposal of the converted shares exceeding 50% should be alleviated to be processed without submission of the creditors' communal resolution to elevate the efficiency of the new act. And, the regulation of the past act acknowledged the shares of Debt-for-Equity Conversion as the exemption of the asset portfolio regulations of ground laws for each financial sectors. In the new Restructuring Act, the converted shares should be exempted from of the asset portfolio regulations until 2 years after the expiration of the act. And, if the disposal of the converted shares are not realized during the period, exceptional approval should be allowed according to procedures defined by relevant regulations and laws to financial institutions. In the past act, the additional credit grant to a potentially insolvent company was prohibited before the establishment of the MOU of management normalization plan. However, the regulation of the prohibition should be omitted in re-legislation of the act. Also, in case of proceeding the procedure as the past Restructuring Act, misunderstanding can be occurred for creditor banks to conduct compulsive actions to the companies. Therefore, it is considered to be desirable to stipulate the procedure to be conducted under mutual agreements to avoid such an unnecessity.


I. 서론
 II. 구 기업구조조정촉진법의 입법 목적
  1. 사전신용위험평가제도의 도입
  2. 채권금융기관중심의 구조조정 추진
  3. 채권금융기관의 사후관리 강화
  4. 원활한 구조조정의 지원
 III. 구 기업구조조정촉진법의 주요 쟁점
  1. 부실징후기업에 대한 강제적용 여부
  2. 권리행사 유예요청의 효력
  3. 반대채권자에 대한 강제적용의 위헌성 여부
  4. 반대채권자 매수청구권의 법적 성격
 IV. 구 기업구조조정촉진법의 재입법 방안
  1. 재입법의 필요성 및 방식
  2. 자동정지제도의 도입
  3. 반대채권자에 대한 강제적용 유지
  4. 절차의 실효성 제고
 V. 결론


  • 박승두 Park, Seung Du. 청주대학교 법과대학 교수, 법학박사


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