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회생절차에서 M&A의 법적 쟁점 - 웅진홀딩스 사례를 중심으로
오수근 한국상사법학회 2013 商事法硏究 Vol.32 No.2
Though the number of M&A in the rehabilitation proceeding has decreased under the Debtor Rehabilitation and Bankruptcy Act(“Act”), new types of M&As have been observed. Woongjin Holdings case as one of such examples shows various characteristics. Even though Woongjin Holdings was a holding company of a big conglomerate, it applied for the rehabilitation proceedings without applying for the Workout in advance and the court did not appoint a receiver. It was the first case where a holding company applied for the rehabilitation proceeding, creditors submitted a prearranged rehabilitation plan and the first, second and the third meetings of parties in interest were held simultaneously. Woongjin Holdings case is estimated as a successful case in that it was completed in 149 days and strongly supported by creditors. The reason for such success could be (1) the court clearly noticed the importance of speed,(2) creditors had trust in the debtor and were cooperative, and (3) the debtor applied for the rehabilitation proceeding without delay. Though the court expedited the case interpreting current laws in a flexible manner, the following issues need to be solved by amendments to the Act; (1) The court may order a receiver to submit a rehabilitation plan when it renders a commencement decision, (2) The report of a receiver at the meeting of parties in interests can be substituted by the report of an examiner, and (3) The types of meeting of parties in interest based on the order of convocation should be merged into a single type and the meeting can be held whenever necessary.
오수근 한국상사법학회 2015 商事法硏究 Vol.34 No.1
This empirical study reveals following facts. A. Among total filed cases, 27% cases did not commenced, 52% cases were cancelled before the confirmation of the plan, 11% cases were cancelled after the confirmation and 10% cases were closed with success. B. It took 25 days from the filing to the commencement in closed cases with success, 33 days in cancelled cases after the confirmation and 37 days in cancelled cases before the confirmation. The sooner the rehabilitation proceeding commenced, the smoother it proceeded. C. It took 220 days from the commencement to the confirmation in closed cases with success and 263 days in cancelled cases after the confirmation. The requirements for the confirmation to be made within 1 year after the commencement were met in practice. D. The amount of assets in examiner’s report was reduced to 50% in the rehabilitation plan. It means rapid decrease of assets right before the filing and the possibility of window dressing. The amount of debts in examiner’s report increased 10% in the rehabilitation plan. E. The correlation between the amount of assets and liquidation value counld not be found. It is because the liquidation value was assessed by different criteria from the principle which regulate the accounting of assets. F. The going concern value was estimated on the basis of sales prospects, which were made discretionally by examiners. The findings of this empirical research suggest some further reform for the development of insolvency law and practice. Firstly, rehabilitation proceedings need to be operated to facilitate the rehabilitation of micro and small enterprises. Secondly, more detailed criteria should be applied in evaluating machineries, sales claims and stocks. Thirdly, the practice which requires examiners to calculate exact number of liquidation value should be corrected.
한국채택국제회계기준상 연결실체의 판단기준에 대한 법리적 분석
오수근 한국상사법학회 2011 商事法硏究 Vol.30 No.3
K-IFRS has come into effect since 2011. Internal auditors and outside auditors shall make reports on consolidated financial statements. Consolidated entities are to be selected first for that purpose. The author analyses ‘control’ and ‘de facto control’ which are the criterion in identifying consolidated entities from a legal view point. In addition, he deals with related issues including superior control, exemption of consolidation,affiliated company, joint venture and audit on subsidiary by an auditor of parent. Some practical points to be noted are presented as conclusion, (1) As control means decision making power in a legal context, it is deemed to have control if one has a voting power over 50%. However, it is not the case when the resolution requirement is tightened. (2) It is not counted as shares with voting power when voting power of nonvoting stocks is exceptionally revived, controlled company owns stocks of controlling company, and converting power is exercised during the shareholders’ list is closed. (3) Agreement on voting right, voting trust and assignment of voting power should be considered in counting voting rights. (4) The existence of voting right should be verified in case when a controlled company issues stock call option, convertible stock, convertible bond and redeemable share. (5) In order to prove the existence of control, several situation might be considered including distribution of shares and pattern of exercise of voting right. 30% of criteria under the Outside Audit Act should not be treated as an evidence in identifying the de facto control.