간이회생절차의 주요 내용과 신청방법

박승두(Park, Seung-Du) 경희법학연구소 2016 경희법학 Vol.51 No.2

채무자회생법에서규정하고있는회생절차는채무자의성격및채무액을기준으로, 개인회생절차와기업회생절차로나눌수있다. 그리고2014년12월30일개정시에는기업회생절차에해당하더라도30억이하의경우에는간이회생절차로분리하여간편한절차를거치도록하였다. 간이회생절차가 신설되기 전에도 중소기업의 회생절차에 대하여는 여러 가지 특칙을 두고있었음에도불구하고, 절차의간편 신속한진행에는크게기여하지못하였다. 이러한현실을반영하여, 채무자회생법은2014년개정에서일본의민사재생법등을참조하여획기적으로개선하였다. 이연구는 시행1주년을맞이하는 시점에, 간이회생절차의 주요내용을 살펴보고, 구체적인 신청방법을 정리하였으며, 필자 나름대로 몇 가지 개선방안을 제시함으로써, 이 절차의효율적이고 합리적인 운용에 기여하고자 한다. 간이회생절차의 주요 내용은, ① 30억원 이하의 채무를 가지는 소액영업소득자를 대상으로하였으며, ②회생계획안에관한회생채권자의가결요건을완화하였고, ③관리위원이나법원사무관 등으로 하여금 간이한 방법으로 조사업무를 수행하게 할 수 있으며, ④ 관리인도 선임하지 않을 수 있게 한 것이다. 그리고 간이회생절차개시의 신청방법은 ① 채무자가 개인인 경우에는 채무자의 성명·주민등록번호 및 주소, ② 채무자가 개인이 아닌 경우에는 채무자의 상호, 주된 사무소 또는영업소의 소재지, 채무자의 대표자의 성명, ③ 간이회생절차개시의 신청을 구하는 취지 등을 기재한 서면으로 하여야 한다. 마지막으로 개선방안으로는 ① 회생절차 상호간의 관계정립, ② 적용대상의 형평성 제고,③ 가결요건의 완화, ④ 신청권자의 확대 등이다. The rehabilitation proceedings are categorized into individual rehabilitation proceedings and corporate rehabilitation proceedings depending on the types of creditor. The amendment bill of Debtor Rehabilitation and Bankruptcy Act(DRBA), December, 30, 2014. stipulates that corporate rehabilitation proceedings can be replaced by simplified rehabilitation proceedings for debts not exceeding 3 billion won. This paper aims to study the major contents of simplified rehabilitation proceedings which has been enacted for 1 year so far and help this proceedings run in more effective and reasonable ways by organizing the ways to apply this proceedings. The major contents of simplified rehabilitating proceedings are as follows: ① Managerial staff or court officials, instead of lawyers or accounting firm, can investigate in simplified ways, ② In assembly of related persons, it is considered that rehabilitation plans are approved in cases when voters who has more than two thirds of total sum of rehabilitation creditor s voting rights consented or voters who has more than a half of rehabilitation creditor s voting rights consented. And when applying to begin simplified rehabilitation proceedings, it is needed to fill out the form with the following information: ① the name of individual debtor, and his/her social security number and address ② the name of firm, head office or the hocation of business office, the name of debtor s representative when debtor is non-individual ③ the purpose of applying for simplified rehabilitation proceedings ④ the cause of applying simplified rehabilitation proceedings ⑤ debtor s business activities and his/her financial conditions ⑥ the amount of debt and evidence that proves they are small business income earners ⑦ an expression of his/her intention for applying to begin rehabilitation proceedings.

기업회생절차상 ‘한국형 Prepack제도’(P-Plan)의 개선 방안

박승두(Park, Seung Du) 전북대학교 법학연구소 2018 법학연구 Vol.57 No.-

In 2017, ‘Korean Prepackaged Bankruptcy’ (hereafter, P-Plan) has been stressed under Corporate Rehabilitation Proceedings of Daewoo Shipbuilding & Marine Engineering Corporation for the effective and fast progress of business rationalization. The plan is believed to overcome the weaknesses of the Work-Out rule and resolve several problems of Rehabilitation Proceedings. However, the current P-plan rule cannot exercise its own role because: the strict regulation of application condition; restriction of submission period of Rehabilitation Proceedings; and lack of proper rules which can accelerate the procedure. From this perspective, the paper suggests P-Plan with the following process: ① the system is prioritized the core industry of national economy, not for all debtors. ② before the rule is applied, primary meeting by debtors, creditors, and court have to have consultations. ③ conduct a due diligence by main creditors. ④ establish a Rehabilitation Plan and get the creditor’s consent before the system starts. ⑤ in addition to essential documents, necessary reports, for instance, a report of due diligence, a prepackaged plan for Rehabilitation, and a letter of intent for new funds should be submitted. ⑥ the Court has to initiate the Rehabilitation process. ⑦ the process targets early termination, and main creditors exercise their authorities.

노인장기요양보험제도의 기본구조에 관한 연구

박승두 ( Seung Du Park ) 청주대학교 법학과 2007 청주법학 Vol.29 No.-

노동조합 대표자의 단체협약체결권에 관한 연구

박승두 ( Seung Du Park ) 청주대학교 법학과 2008 청주법학 Vol.30 No.1

企業回生節次上 相計權에 관한 硏究

박승두(Park, Seung Du) 전북대학교 법학연구소 2012 법학연구 Vol.37 No.-

First, the Debtor Rehabilitation and Bankruptcy Act for the set-off condition does not approve all of the set-offs allowed by civil law and partially restricts them in order to materialize corporate rehabilitation. The basic condition for the set-off balance as a condition by civil law must exist, and the set-off balance must subsist at the time of set-off. When the Debtor Rehabilitation and Bankruptcy Act disturbs the growth of corporate assets and imposes excessive profits for the party on set-off, the set-off is then banned even after acknowledging it under the Act. Second, the method of set-off is a juristic act and is considered as a unilateral declaration of intent for the other party. The party for set-off by the rehabilitation creditor according to the corporate rehabilitation proceeding must be a custodian not a corporate itself. Third, when the period for set-off is extensively recognized for the rehabilitation creditor in the corporate rehabilitation proceeding, the corporate may fail to rehabilitate; hence, a period to exercise a set-off due to the peculiarity of rehabilitation proceeding has been pre-defined. That is, rehabilitation bonds or rehabilitation security rights can submit a set-off without the rehabilitation proceeding if the set-off is on the balance prior to the due day for the notification period. Lastly, the effect of set-off is the expiration of bond liabilities for the equal value. The point at which the set-off goes in effect is not when the intent for set-off is declared but when it reaches the set-off balance. The veto power for the exercise of the set-off right comes into consideration. The veto power intends effective rehabilitation of the corporate filed for the proceeding of the Debtor Rehabilitation and Bankruptcy Act, but the veto of the effect of the creditor’s act that is legally permitted can be an illegal act, transcending the idea and the interpretation of the positive law. Therefore, the set-off should not be viewed as an object for the veto power, regardless of the prior exercise of the right of pledge.

일본 민사재생법의 이념과 기본구조

박승두 ( Seung Du Park ) 청주대학교 법학과 2010 청주법학 Vol.32 No.1

日本の民事再生法は、韓國の債務者回生および破産に多する法律の制定にも參考となり、現在日本でも企業の回生に多くの寄與をしているので、この法律に關する硏究の必要性が提起されている。日本の民事再生法は、卽存の和議法を代替して制定された法律であることに大きな意味がある。和議法は手續き開始後にも債務者が引き續き事業經營權などを維持できるという點などで從來日本の多くの中小企業が利用してきた。しかし、その裏には樣タな問題點が隱れており、實質的には中小企業の更生に役立つことが出來なかった。そして,韓國の會社整理手續きに該當する、日本の會社更生手續きは利害關係 を調整しながら企業の維持·更生を圖ることを目的とする强力な再建型倒産手續きである。しかし、これもまた中小企業の更生には適切でないと批評されてきた。これらの點で、卽存の和議手續きのように基本構造が簡素であり、その欠點を全面的に補うと同時に會社更生手續きの長點を導入し、中小企業を效率的に更生出來る新たな再建型倒産手續きを創設する必要が提起された。これらの要求に應えて制定されたのが民事再生法である。民事再生手續きは債務者が業務の遂行及び財産の管理處分を續けることを原則とし、再建のため、卽存の經營者の經營能力および信用を活用できるようにした。また、卽存の經營者による財産の管理·處分が適切でない場合など事業の再生に必要な場合には例外的に管財人などの機關を選任できるとし、債務者のモラルハザ―ドを防止している。和議手續きでは、手續き前の保全處分として取り押さえ、?處分ほか保全處分を可能とした。さらに强制執行などの中止命令·包括的禁止命令·擔保權の實行としての競賣手續きの中止命令·保全管理命令などを置き、保全處分の忠實化を期した。また、保全處分が行われた後には、裁判所の許可を得られなかった場合、再生手續き開始の申請を取り消すことが出來ないようにし、手續きの亂用を防止する措置を講じた。そして、この法律は重要な特權である擔保權および優先債權に關する規定である。再生手續きでは手續きの構造を單純化するため擔保權負債權や一般の先取特權ほか、一般の優先權のある債權には手續きの制約がおよばないとされている。したがって、再生債權者の財産上特別な先取特權、質權、抵當權など商事留置權を持つ者は別除權者になり、別除權者は再生手續きによる制約を受けないので自由な擔保權を行使することが出來る。しかし、擔保權の實行に關して何の制約も置かないとするならば、再生債權者の事業または經濟生活の再生のために必要不可欠な財産がなくなり再生債權者の再生が困難となり、結局には一般の利益に反する場合が生じかねない。從って再生手續きにおいては再生債務者が擔保權者と交涉し、返濟條件などに關する合意による解決を導く時間的猶予を付與するため、前述した擔保權の實行による競賣手續きを一時的に中止し、さらには擔保の目的となる財産が再生債務者の事業が繼續不可欠な場合にはその財産の價額に相當する金錢を裁判所に納付し、擔保權を消滅できるようにしている。再生手續きはこの樣な制度を通じて財産の價値を超過する擔保權が設定されている場合であっても擔保權者に目的物の市價に相當する金錢の支給を保障そして、再生手續きにおいては手續きの構造を簡素化するために一般の先取特權ほか一般の優先權のある債權は`一般選手權`として、再生手續きによらない隨時變除している。つまり、一般優先權は再生優先權とは異なり、再生手續きが開始されてもその權利行使が制限的でなく、再生債權者には支給を請求することはもちろん、滯納處分または强制執行、先取特權の行使としての競賣も可能である。ただ、再生債務者の財産に對し、一般優先權に基づいた强制執行などが行われると、① 當該强制執行などが再生に明らかな支障を招き、② 再生債務者が特別に換價に容易な財産を保有している場合には、その中止、または取り消しを命じることが出來る。また、一般優先權は債權を深刻する必要もなく再生計?による權利變更の對象でもない。整理計?には一般優先權の變除に關する項目も設けられているが、この規定の目的は再生計?で再生債務者が今後優先的に支給されるべき債務の金額と內容を明記することで、再生債權者が再生計?の當否および移行可能性に關する判斷の前提となる情報を把握するためでもある。

출자전환시 채무의 소멸성에 관한 연구

박승두 ( Seung Du Park ) 경상대학교 법학연구소 2013 법학연구 Vol.21 No.4

There have been plenty of legal issues surrounding debt-for-equity swaps hat took place during the processes of corpora e rehabilitation under the Debtor Rehabilitation and Bankruptcy Act, workouts and the proceedings wlder the Corporate Restructuring Promotion Act. The debate on ``the extinction of a debt`` I among the issues, also has not come to a con lusion as to how much debt can be eliminated through such debt-far-equity swaps. That is, while the theorists take it that the debt-far-equity swap in corporate rehabilitation can lead a company 0 either partial or total elimination of debt, precedents show that the courts stand only for the partial extinction of debt. Also theories do not have a clear stance for the deb -for-equity swaps in corporate workouts. but the precedents sho that the judges endorse the total extinction of debt. The same goes for the application of the corporate restructuring promotion act; no specific theoretical support from legal specialists are provided. but the court stands in favor of the total debt extinction for debt-far-equity swaps in this process. However, ac ording to the authoritative interpretation of Ministry of Finance and Economy, the debt can only be partially eliminated through debt-for-equity swaps no matter wha kinds of circumstances they have taken place in. Due to the gap between the theory and its practicali y. the boundary that defines the responsibilities oC guaran ors stays unclear, creating confusion both for the companies that issued stocks ins ead of paying off their debt and the ones that received shares instead of receiving reimbursement for their bonds. The purpose of this study is to provide a reasonable interpretation standard regarding this issue and to contribute to providing fair proceedings for all the parties concerned. Under all three circumstances. whether a debt-far-equity swap as decided In the process of corporate rehabilitation, workout or corporate restructuring promotion, the debt eliminated through the debt-far-equity swap should be considered as the appraised value of the stock. 2. the bonds of a company that requested for these rescue proceedings were evaluated, a security right holder can be assured that the claim for rus or her possession of the company`s liqujdation value is guaranteed. The bonds with the third real se urity right holders or guarantors will be evaluated correspondingly, and even those without the security rights on the company will stand a better chance to receive reimbursement. It is not theoretically nor practically reasonable to state that the valueless stocks issued through a debt-for-equi y swap can elirrunate the whole debt of a compan . Furthermore, onsidering a shareholder`s payment for the stock acquisition and the company`s reimbursement for the corporate bonds to be compensating, or seeing the total amount of the corporate bond as the gross price for stock acquisition are irrelevant to he establishment of a standard that would help evaluate th nature of debt extinction. Therefore, it would be proper to say hat the debt extinction through debt-far-equity swaps in these processes is only subject to partial elirrunation of debt based on the stock appraisal done at the point of the debt-far-equity swap. Therefore, it would be proper to say that the debt extinction through debt-far-equity swaps in these processes is only subject to partial elimination of debt based on the stock appraisal done at he point of the deb -for-equity swap.

파산절차상 해고에 관한 판결의 부당성-대상판결: 대법원 2004. 2. 27. 선고 2003두902 판결-

박승두 ( Park Seung Du ) 한국외국어대학교 법학연구소 2014 외법논집 Vol.38 No.2

Dong A Construction Corporation was declared bankrupt by Seoul District Court on 11, May 2001. At the same time, the bankruptcy administrator gave advance notice of dismissal on 15, May, the same year on the Internet bulletin board informing 32 employees including union leaders will be discharged as of 14, June the same year. Complaining it was an unfair labor practices as the only union leaders were given dismissal notice, they asked Seoul National Labor Relations Commission to investigation for unfair labor practices on 17 May the same year. However, the council dismissed the petition saying it was a dismissal with justifiable reason and there was no unfair labor practices on 19 July the same year. The complaints applied for a retrial to the Central Labor Relations Committee. Although it ruled that it was unfair dismissal and unfair labor practices that they were deprived of the right to work even as assistants and overruled the first trial, it also dismissed the petition for both the reinstatement and the payment they were supposed to received. Later, the appeal was dismissed at the Seoul Administrative Court, Seoul High Court and the Supreme Court. However, I can't accept the Supreme Court's Judgement as it failed to understand the legal nature of dismissal in bankruptcy Proceedings. The general opinion in academic field is that the legal nature of discharge in bankruptcy proceedings subject to following: 1. Dismissal based on the Labor Standard Act, 2. Cancellation of contract due to mutually unfulfilled bilateral contract based on Debtor Rehabilitation Act, 3. The termination of employment contract based on the Civil Law. The the Supreme Court's Judgement was made based on the rules for bilateral contract in old Bankruptcy Act-the current Debtor Rehabilitation Act and the Civil Law, disregarding both mutually unfulfilled bilateral contract in Debtor Rehabilitation Act and the employment contract in the Civil Law. The objective of labor law is to specify the procedure of the fundamental labor rights and the extent of its application stated in the Constitution, while the Debtor Rehabilitation Act specifies special provisions that is required for company rehabilitation. So, it does not serve its purpose to specify the extent of labor right application in the Debtor Rehabilitation Act. Even though such provisions were to be enacted in the Debtor Rehabilitation, it would be the labor law in an “extended” or substential meaning which does not meet the minimum standard of the labor condition stated in the Labor Standard Act. This is the violation of the provision of Article 1 and 2 of the Labor Standard Act that states the minimum standard of working condition and the Constitutional Human Living Right.

채무자회생법상 자동중지제도 도입의 필요성과 정당성

박승두 ( Park Seung-du ) 한국외국어대학교 법학연구소 2013 외법논집 Vol.37 No.4

The Corporate Rehabilitation Proceeding is a court-led legal protection for companies in financial difficulties, providing them a way to revive by reducing significant amount of debt and/or granting longer period of grace based on Debtor Rehabilitation and Bankruptcy Act. In order to fully utilize this system, it is necessary to keep the companies’ property well preserved. For this reason, the Debtor Rehabilitation and Bankruptcy Act provide the preservation-of-property measures for the creditors and the debtors, the companies, before and after the decision on commencement of the proceeding. Nevertheless, the current system has repeatedly been criticized for its ① time lag from the day of application filed and the actual point that it is given a stay order, ② cumbersome nature in which a court has to meddle in every step, ③ unnecessary waste of time and money. Many of the developed countries have adopted the Automatic Stay System that suspends the execution of the creditor as soon as a debtor’s application filed, which is considered to relieve the burden of the court a great deal. It is similar to our current system in the sense that it sets its purpose in achieving the efficient revival of a company and the fairness in the process. Under the Automatic Stay System, however, the company cannot pay back its debt nor the creditor claim for a credit execution once the debtor’s application filed. In contrast, our current system requires not only a debtor’s application filed but a court’s preservation measure when the claim is considered legitimate. Therefore, the former system takes the preservation of the company’s property essential while it is delayed and optional in the latter. It is imperative that we systematically analyze the Automatic Stay System and introduce what would fit in our actual circumstances.

출자전환(出資轉換)으로 취득한 주식(株式)의 시가 이하 계상을 이유로 한 법인세부과처분(法人稅賦課處分) 관련 판결(判決)의 불당성(不當性) -대상판결(對象判決): 서울행정법원, 2011.12.16 선고, 2011구합11785 판결 및 서울고등법원, 2012.06.13 선고, 2012누463 판결-

박승두 ( Seung Du Park ),배영석 ( Yeong Seok Bae ) 이화여자대학교 법학연구소 2013 법학논집 Vol.18 No.1

NH Bank recently acquired the stocks of LG Card through debt-for-equity swap, appraising the acquisition cost not based on the closing price of the stock exchange but on Korea Asset Pricing`s estimation on non-marketable equity securities. In regard to this, stating that the bank undervalued the stock acquisition price, the taxing authorities ordered that NH Bank pay additional tax default, along with the corporate tax imposed with the cost differential between the two stock prices included in its gross income. However, there are no law clauses in Corporate Tax Act or its Enforcement Decree to support the decision to make the bank`s undervaluation to become a reason to put the differential in NH Bank`s gross income and make the bank pay more. Therefore, the taxing office`s ruling in this case was illegal, not having enough legitimacy in its nature while lacking accordance with the necessary procedures. The judgments, first by Seoul Administrative Court and then by the Seoul High Court, seem to have been rendered while the courts were not fully aware of the crucial points in the case. The more important issue in the disposition is not the ``undervaluation of NH Bank`s stock acquisition`` itself but ``whether to include the uncollectable accounts occurred at the debt-for-equity exchange in deductible expenses.`` Nevertheless, the courts regarded the former matter as the only point of interest and left the latter completely untouched. It was also a mistake that the courts presupposed the stock acquisition price should have been based on the market value according to Item 4 of Para. 1 of Art. 72 of the Enforcement Decree although the debt-for equity exchange in this case was actually NH Bank`s participation in LG Card`s capital increase, carried out in the form of payment of stocks. Furthermore, the second debt-for-equity swap of NH Bank was merely an acquisition of the new stocks through debt-for-equity exchanging at the stocks` face amount, but the court saw it that LG Card gave NH Bank 550 won per share-when simply put, the courts thought the bank gained 550 won per share by its participation in capital increase-and ordered a taxation disposition, a verdict that cannot be accepted nor be explained by any means. The real point at issue in the case is ``whether NH Bank`s evaluation and declaration of the stock acquisition price should be subject to the imposition of corporate tax, since the amount was not based on the closing price of the stock market.`` Considering it was never dealt with during the trials, the verdict might as well be reversed and quashed.