사채권자 권리의 개별화 또는 집단화에 따르는 문제점에 관한 고찰

초록

Corporate bondholders obtain their rights from the Commercial Act and a bond administration contract. Any system for the amendment and enforcement of these rights necessarily involves a trade-off between individual rights, held separately by each holder, and collective rights, held only by a specified group of holders or by some representative. If rights are individual, they cannot be amended without the consent of each affected bondholder and they can be enforced by any bondholder whose right is violated. By contrast, collective rights can be amended by a majority of bondholders and they cannot be enforced without the consent of a majority of bondholders. This Article reviewed the current structure of bondholder rights under the Commercial Act and a bond administration contract to assess to what extent any particular right should be vested individually or collectively. The current structure which vests rights collectively in the amendment context can reduce properly collective action, holdout, and conflict of interest problems, only creating a potential loss of control problem. In the enforcement context, however, the current structure vests rights both collectively and individually to minimize several theoretical problems. Finally, it is possible for the bond administration company to ameliorate various problems with vesting rights collectively and individually. In order for the bond administration company to act as an effective representative of the bondholders, its legal status should be clarified and its fiduciary duties should be enforced strictly.

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