회생절차에 있어서 강제인가의 요건과 그 방법

Abstract

In the reorganization procedure, various classes of stakeholders participate. The law helps them make a group decision by classifying them into secured creditors, unsecured creditors, shareholders and interest holders and requiring a vote by each class on the reorganization plan (Article 236). The adoption of the reorganization plan requires the affirmative vote by all classes. However,even if the affirmative vote in one or more classes is less than the legal threshold for approval, the court is allowed to approve the reorganization plan (Article 244). This measure is called cramdown. It is intended to promote the efficient reorganization of a debtor and the protection of the rights of the stakeholders in a non-approving class on the basis that it is not socio-economically desirable to prevent a reorganization procedure for a debtor that deserves the reorganization only because of unreasonable demands by certain stakeholders. In this paper, the focus is on the detailed review of the contents and the meanings of the laws relating to the legal requirements and specific processes for the cramdown. In Chapter 2, the specific legal requirements for the courts to set forth the protection conditions and cram down the plan are reviewed in detail. Also included in this review is the general requirements for the approval of the reorganization plan as a part of such specific legal requirements. In Chapter 3, the procedures to set forth the protection conditions are divided into making the protection conditions before and after the plan is disapproved and the legal implications in each case are analyzed. Through this analysis, it is attempted to set forth the reasonable basis for understanding fairness and equity, relative priority rule and absolute priority rule, best interest of creditors principle, etc.