반대주주의 주식매수청구권과 시너지분배 — M&A 제도개선을 위한 자본시장법 시행령 개정안에 대한 코멘트를 겸하여—

Abstract

Companies pay the fair price, when the dissenting shareholders exercise their appraisalrights. Questions arise in this situation, whether the company should consider the synergy effect generated by the reorganization and how it can be distributed to the shareholders of the participants. This paper shows the legal problems thereover. Although this issue has not been approached at all in Korea, foreign laws and precedents have already been specified to a significant degree, so the improvement of related laws in Korea is an urgent task. The author first looked at general theories related to synergy and then explored each country's situation through comparative law. In the case of U.S.. the approach is mainly centered on Delaware corporate law. focusing on recent trends there. Section 262(h) Delaware's General Corporation Law(DCL) demands the court in an appraisal proceeding to determine the fair value of the shares exclusive of any element of value aring from the accomplishment or expection of the merger. But the Delaware Courts have routinely disregarded this statutory mandate. They said that the "fair value" must be the merger price, which necessarily reflects the synergy effect, though the statute imposes the exclusion thereof. In civil law states like Japan and Germany, the consideration of synergy by calculating the fair value has firmly been the practice of corporate finance. The Supreme Court in Japan had already released the relevant cases in the year of 2011 to 2012. At the begin of this century, the German Federal Court also released the case of DAT/Altana, by which the Court permitted the consideration of synergy generated by the reconstruction. The author points out that it is an urgent task for the company lawyers in Korea to review the global phenomenon surrounding the appraisalrights and to react promptly thereto.