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Efficiency of Korean New Rehabilitation Proceeding
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- Authors
- Issue Date
- 2007
- Publisher
- BK 21 law
- Citation
- Journal of Korean Law, Vol.7 No.2, pp. 251-282
- Keywords
- Ex ante efficiency ; ex post efficiency ; receiver ; debtor-in-possession ; absolute priority rule ; relative priority rule ; new rehabilitation proceeding
- Abstract
- The rehabilitation proceeding under the reformed Debtor Rehabilitation and Bankruptcy Law
(DRBL), effective as of April 1, 2006, unified two old rehabilitation procedures used for the
recovery of financially distressed firms for more than forty years in Korea. However, two key
elements of the previous procedures survived in the unified rehabilitation scheme with some
modifications to achieve efficiency of the new rehabilitation proceeding, i.e., receiver instead of
debtor-in-possession and relative priority rule (RPR) for distribution of corporate value
according to a rehabilitation plan. Under the new rehabilitation proceeding, the representative of
the debtor company can be appointed as receiver of the debtor company unless it is liable for the
commission of material mismanagement causing insolvency thereof. In some special cases, the
representative can operate the debtor company without an appointed receiver. The RPR is revised
in a way to guarantee secured and unsecured creditors at least the liquidation value of their
collaterals and the corporate value. Do those modifications maximize the ex post revenue and
reduce the ex ante costs, such as overinvestment effects and delay effects, of financially distressed
firms? Generally speaking, the ownership and management are not separated even in large and
publicly-held corporations in Korea. In such economic and legal environments, the
overinvestment effects and the delay effects to experiment overinvestment become great before
filing for bankruptcy. It is very important to reduce such ax ante inefficiency so as to ensure that
more value of the debtor company can be distributed to its creditors. To minimize the ex ante
costs, the rehabilitation proceeding should be more lenient to shareholders of the debtor company.
Based on the foregoing considerations, the legislators were set to grant the shareholders incentives
to file for rehabilitation proceedings at the right time through the 2006 reform, but the reform still
leaves much uncertainty as to the efficiency of the united scheme to debtors and creditors.
- ISSN
- 1598-1681
- Language
- English
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