존속회사의 합병으로 인한 자본증가의 한계 및 합병비율의 불공정

Abstract

This paper aims to comment the Supreme Court Decision 2007다64136(hereinafter referred to as ‘the decision’). The decision deals with 3 hot issues arising out of the law of stock corporation mergers ; ① Does the net asset of disappearing corporations limit the amount of capital increases in a surviving corporation? ② Is it ligitimate for an overindebted corporation to merge into a solvent corporation or vice versa? ③ Does grossly unfair merger price or exchange ratio nullify the consummated merger? In Chapter Ⅰ are described the facts found by the First Court and Appeal Court. In Chapter Ⅱ, the Supreme Court’s final opinions to the above-mentioned issues are briefly introduced. Scrutinizing in Chapter Ⅲ all the relevent interpretational legal theories and doctrines of U.S.A, Germany, Japan and Korea, the Author concludes : ① In the light of co-called ‘capital maintenance rule’ the first issue should be affirmed, and so far the decision is right. ② Considering that present legal system is insufficient to protect the dissident shareholders of solvent corporations, any overindebted corporation may not be a party to a merger. The decision is criticized with its very ambiguous answer to this aspect. ③ Recognizing that fair price constitutes the core and preponderant consideration outweighting other features of the merger, grossly unfair price or exchange ratio may nullify even the consummated merger. The decision is basically to be supported. But so easily legitimating the market-price-only provisions for the listed corporations of the Securities Exchange Act, it deserves harsh censure. Those provisions are to extinguish.