기업매수방어책과 주주평등의 원칙

Abstract

The principle of equality of shareholders is central principle of company law. By the way, the country which stipulates expressly in law actively is, but the nation of the negative attitude is. Therefore, I think this is not the universal principle which is common in company laws, but the principle which appears from the earnest request of legal actuality. Of course, it will not be able to deny the logic which they establish in ideology of justice and balance that theory and judical precedent support. Only, the universal principle which is a high position norm because is the last bulwark for right protection and a law order maintenance, there is a necessity which will control one application which is possible. To the case to which consequently, the shareholder equal principle needs, respects a clarity and a legal stability from, after stipulating expressly in laws, about the actual condition law violation discussion to lead and, is more desirable to solve. Meantime, there is critical opinion that a view oneself that takeover defenses is not violation of the principle of equality of shareholders, is justifying for poison pills. But, when applying this principle to, the interpretation which is soft and elastic is necessary. Namely, For the whole society from certainly the company which is necessary to exist, there is not a necessity which will apply the equal principle which is uniform about hostile takeover which is the possibility which will injure the company value of the company which is such. In order defending the company value of the company which is necessary in order for the whole society from certainly from, unavoidably to the case where the situation which is special must sacrifice a shareholder equal principle is recognized, there is not a necessity which will accomplish a shareholder equal principle. To the case where like this, the rationality of handling which is unequal is recognized handling which is unequal exceptionally is permitted. And, there is to rationality judgment for handling which is unequal, different element and joins in and a necessity which will consider attributes of the attacker also there is.