公司重整計畫之研究－以債權人保護出發

林家豪

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公司重整計畫之研究－以債權人保護出發

A Study on the Corporate Reorganization Plan-From Creditor Protection Perspective

林家豪 , Masters　　Advisor：張心悌　　

繁體中文

重整計畫；公司重整；債權人保護；強制認可；絕對優先原則；新價值原則；債權人最佳利益原則；債權分組；資訊揭露；美國聯邦破產法； Corporate reorganization ； Reorganization plan ； Creditor protection ； Cram down ； Absolute priority rule ； New value rule ； Exclusivity period ； Classification of claim ； Disclosure statement ； Best interest of creditors’ test ； United States Bankruptcy Code

Abstract │ Reference (95) │ Times Cited (2) │ Altmetrics

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This thesis meanly focuses on creditor protection under the corporate reorganization procedure, especially to the reorganization plan. Not only Company Act or Business Mergers and Acquisitions Law, but also the new Insolvency Bill, which was promulgated by Judicial Yuan on January 2007, is discussed and investigated in this thesis.
Since 1966, more than 43 years from now, the system of corporate reorganization has been legislated in Company Act. However, there are only a few financial distressed companies honestly restructure itself by utilizing the system above. The majority dishonestly abused the system as a tool to force creditors to compromise on a more favorable repayment term to debtor in the negotiation process. Moreover, some may use the drawbacks of the system to misappropriate the company assets and thus extremely impairs creditors’ interests of repayment. Although the most important legal purpose for corporate reorganization is to save the financial distressed company from liquidation and thus successfully rehabilitated, a sound system should never pursue it by sacrificing the creditors’ interests and rights. Therefore, the conflicts between corporation rehabilitation and creditor protection must be harmonized.
Most previous researches per academia and practice focus on the whole construction of corporate reorganization system rather than detailed statutes examination, due to the complexity of this subject and the limitation of time and resources. Since all parties’ future obligations and rights m will be ascertained under the reorganization plan which was confirmed by a court, the reorganization plan is truly the core of the system. While all procedures cast influences on creditors, the reorganization plan must be the most significant one. As a result of the reasons above, this thesis will only examine and discuss the statutes related to the reorganization plan so as to expend the “depth” of the existing researches.
This thesis will explore the entire reorganization procedure and compare it with other similar insolvency procedure in order to demonstrate the distinctive characteristic of reorganization. Further, by examining the conflicts between parties and the potential risks undertaken by creditors during the reorganization proceeding, the solution of harmonization can be reached. Moreover, the comparison between current Company Act of Taiwan and Federal Bankruptcy Code of United State will be listed and commented in Chapter 3, and the suggestions from scholars will also be presented simultaneously.
Furthermore, the current practices of reorganization in United State, which is the best way to reveal the applicability of Federal Bankruptcy Code, will be demonstrated in Chapter 4 by presenting the important opinions from academia and courts on real bankruptcy cases. Finally, based on the inference reached above, Chapter 5 will not only introduce the important amendments of the new Insolvency Bill and the comparison with the current Company Act, but also address the suggestions about the current Insolvency Bill. Hopefully this thesis can be considered as a reference document and make some contributions to future amendment.

Reference ( 95 ) 〈TOP〉

8. 林群弼，由比較法之觀點論我國現行公司重整之規定，國立臺灣大學法學論叢，第 34 卷第 1 期，2005 年 1 月。
連結：
17. 齊樹潔，大陸新破產法之重整制度評析，法令月刊，第 57 卷第 11 期，2006 年 11 月。
連結：
24. 鄭有為，論公司重整之新資金融資取得，法令月刊，第 58 卷第 2 期，2007 年 2 月。
連結：
2. 江華祐，中國企業破產法中重整制度之研究，國立政治大學法律學系碩士論文，2008 年 6 月。
連結：
5. 陳盈君，論重整制度之適用與修正趨勢－自規範目的出發，國立台灣大學法律研究所碩士論文，2006 年 9 月。
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