합병비율의 불공정성과 소수주주 보호－ 유기적 제도설계를 향하여 －

Abstract

A recent merger within the Samsung Group invited fierce debate over the fairness of current legal arrangements to protect minority shareholders in M&A deals. In this case, the Samsung C&T Corp.(Samsung C&T) announced its plan to be merged into the Cheil Industries Inc.(Cheil), whereby each share of Samsung C&T will be changed with 0.35 Cheil share. While the controlling shareholders of Samsung Group, the president Lee and his family, has less than 2% shares in Samsung C&T, they owns over 40% shares in Cheil. The Elliot Management, a minority shareholder of the Samsung C&T, criticized the merger ratio of 1:0.35 was absurd and too disadvantageous against Samsung C&T shareholders. Lee family, they argued, tried to transfer the wealth of Samsung C&T’s shareholders to Cheil’s shareholders. The Seoul Central District Court and the Seoul Higher Court, however, turned down Elliot’s argument, stating that the merger ratio based upon the formula stipulated in the Capital Market and Financial Investment Business Act (CMFIBA) seemed fair. The merger proceeded as planed and finalized on Sep. 1, 2015. This paper is to explore an answer to the questions raised by the merger case above: Do current legal arrangements for M&A efficiently protect minority shareholders? How can we reform some defects in the system? Chapter II deals with so-call ‘direct’ device to secure fair merger ratio in Korea. As shown in the Samsung case, the CMFIBA provides formula to estimate the share value of merged company and merging company. As far as the both parties of a merger are listed, whether they are affiliated or not, the share value should be estimated by market price. The rule under the CMFIBA was initially adopted to protect minority shareholders: an attempt to buy an affiliated company at a cheap price became implausible due to the provision. In spite of apparent persuasiveness of the logic, however, the direct intervention by the CMFIBA provision has many demerits. First, the stipulation of transactional terms and conditions is unnecessary for arm’s length transactions. The CMFIBA provision should not be extended to arm’s length transactions. Secondly, the dependence of market price as the benchmark of merger ratio estimation often brings in the disfunction of market. In Samsung case, the prospect that the Samsung C&T shall be disadvantageously merged into Cheil seemed to negatively influence the price of Samsung C&T shares, creating so-called a vicious cycle. The remaining Chapters of the paper analyzed indirect devices as substitutes. The balanced deployment of diverse indirect devices is important, including appraisal remedy, preliminary injunction, damage claim against wrongdoing directors, control by shareholders’ meeting, and nullification of merger. Especially the paper emphasizes the procedural aspect of the merger ratio decision. The courts should review the procedure of a merger, not the substance. A reform suggested by this paper is the adoption of the examination system by a neutral merger inspector in related party merger, with some exception appli- cable to a merger ratio calculated by independent special committee.