1. 들어가며

부동산PF에서 담보제공방식으로 저당권을 설정하지 않고 담보신탁을 활용하는 경우가 많습니다. 담보신탁을 하게 되면 담보물의 대내외적인 소유권이 수탁자에게 완전하게 이전되므로, 담보물에 대한 예상치 못한 집행을 방지할 수 있고, 채무자에 대한 회생절차가 개시되더라도 우선수익권을 회생절차에 의하지 않고 행사할 수 있는, 소위 '도산절연 효과'가 인정됩니다. 즉, 부동산 담보신탁 계약에서 우선수익자로 지정된 자는 통상 저당권과 유사한 담보권자의 지위를 확보하게 됩니다.

대상 판결(대법원 2024. 6. 27. 선고 2021다261704 판결)은 담보신탁에 따라 위탁자가 가지는 잔여대금 채권이 압류된 후 위탁자가 2순위 우선수익자를 지정하고, 다시 후순위 압류명령이 이루어진 사안에서, 공매에 따른 매각대금이 누구에게 귀속되는지에 대하여 판단하였습니다.

2. 사안의 개요

As of December 2024, insolvencies in the real estate sector accounted for approximately 22% of admitted cases under the Insolvency and Bankruptcy Code, 2016 (“IBC”), making it second only to the manufacturing sector that accounted for 37% of admitted cases.[1] The high volume of insolvencies in the real estate sector, the imperative to protect homebuyer interests and specific challenges faced by this sector have resulted in several amendments focused specifically on the insolvency process for real

After a couple of years where uptake was slow, the small business restructuring (SBR) regime, which came into effect 1 January 2021, has well and truly cemented itself as the favoured debt restructuring process for companies with less than $1 million in liabilities (other than employee entitlements). There are now more SBRs per month than voluntary administrations, and represent around 25 per cent of all new corporate insolvencies.

Section 182 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) (“CWUMPO”) renders the disposition of a company’s property after the presentation of a winding-up petition against it void, subject to any validation order granted by the court. This provision serves to preserve the company’s assets at the date of the winding-up petition for the general benefit of creditors, and to ensure that the statutory scheme of pari passu distribution can be implemented.

Introduction

Judge Parker of the U.S. Bankruptcy Court for the Western District of Texas recently issued an order in the case of Hilltop SPV, LLC, granting debtor Hilltop SPV LLC’s (“Hilltop”) motion to reject a Gas Gathering Agreement (“GGA”) with counter-party Monarch Midstream, LLC (“Monarch”).[1] This decision allows Hilltop to reject the GGA while allowing Monarch to retain the covenants that run with the land post-rejection.

Introduction

Established in 2005 by the Wadia Group, Go Air, later rebranded as Go First, entered the Indian aviation sector as a low-cost carrier, aiming to provide affordable air travel to the rapidly expanding middle class. The airline was built on a business model that focused on operational efficiency, a streamlined fleet, and competitive pricing. However, despite its early success, Go Air faced mounting financial difficulties that ultimately led to its insolvency.

U.K. Turnaround and Restructuring Update February 2025 While we may have witnessed a degree of muted activity in the final quarter of 2024, this year has opened with renewed vigour, presenting strong signs of a busy 2025 for our U.K. Turnaround and Restructuring team. It was perhaps the Chancellor’s Autumn Budget statement in October that brought 2025’s potential challenges for many businesses into much sharper focus.

When a company goes into liquidation, creditors often wonder whether they will recover their debts. One available option to achieve this is funding legal action to help the liquidator recover assets.

Singapore's insolvency legislation allows creditors who fund liquidators' recovery actions to have priority over other creditors in the distribution of recovered assets. This improves the viability of commencing insolvency proceedings as an asset recovery tool.

Financial difficulties can creep up on a business when least expected. Whether it's due to market shifts, unexpected costs, or operational setbacks, many businesses find themselves at a crossroads: How do we turn this around before it's too late? The key is acting early and having the right plan in place.