تبعیت از وام های سهامداران در ورشکستگی

Bankruptcy and corporate laws in several countries allow or require courts to subordinate loans by shareholders to corporations. Examples include the German Eigenkapitalersatzrecht and the equitable subordination and recharacterization doctrines in the US. I use a model to show the incentive effects of subordination when a controlling shareholder attempts to rescue a closely held corporation by extending a loan. Even though subordination has some beneficial effects, it deters some desirable rescue attempts and is an insufficient deterrent for some undesirable ones. Legal reform should thus focus on narrowing down the scope of application to undesirable shareholder loans, where more severe penalties than subordination should apply.

In closely held corporations, the owners of a significant amount of shares (who may be managers at the same time) sometimes try to avert an impending bankruptcy by informally extending a loan, in the hope of financing a successful rescue attempt. However, for creditors, the continued operations of the company may result in a dissipation of even more liquidation value due to perpetuated and increased risk. Courts are therefore sometimes inclined to penalize shareholders by subordinating such loans in bankruptcy, or by treating them as equity. This paper analyzes the effects of the subordination of such loans on social welfare by using a formal economic model. Even though its motivation comes mainly from the German and Austrian discussion on the doctrine of equity substitution (Eigenkapitalersatzrecht), subordination is an issue also in the law several other countries, including the US, which face similar or the same policy issues. The paper proceeds as follows: After a brief comparative overview on the law in Section 2, and a summary of previous literature in Section 3, I set up a simple model in Section 4 in order to explore the underlying incentive structure and its effects on desirable and undesirable rescue attempts under the circumstances described above. Section 5 interprets the results of the model and discusses ex ante effects on interest rates. Section 6 discusses the effects of particular risk preferences. In Section 7, I try to identify criteria for the limits of subordination and find that an alternative approach may be preferable. Section 8 concludes.

The analysis of the incentive effects of subordination or recharacterization of shareholder loans shows that there is a potential danger of preventing either efficient or inefficient rescue attempts. In order to prevent “Type II errors”, i.e. to avoid deterring desirable rescues, the doctrine should ideally not apply to ex ante efficient attempts, which would require an assessment whether a rescue attempt resulted in an ex ante expected total value of the company larger than its liquidation value at that time. A “creditworthiness” criterion includes too many cases under this analysis, because creditors do not consider benefits of a successful rescue attempt accruing to shareholders and to other stakeholders of the firm. The analysis of this paper therefore suggests that the skepticism of some scholars towards subordination is well-founded. On the other hand, in some cases subordination creates insufficient deterrence against “Type I errors”, meaning that undesirable rescue attempts will not be deterred. Policymakers should consider stiffer penalties in such instances. This paper suggests that those should rather be framed as liability to creditors than as subordination.