M&A의 공정성 담보 조치에 관계된 일본의 현황 분석 -특별위원회 활용 및 소수주주의 다수결(MoM)을 중심으로-

Abstract

If fairness is not ensured in situations such as M&A, where the duties of directors can directly affect shareholders’ interests without necessarily going through the interests of the company, it could result in significant harm to certain shareholders’ interests and cause serious disruptions in the corporate ecosystem. For this reason, we need to examine various measures that ensure fairness in M&A and similar transactions, and, if the current measures are insufficient, make efforts to supplement them. With this understanding, this study examines the current use of fairness assurance measures in Japan and draws implications for South Korea. In Japan, there has been a tendency to approach ensuring fairness in M&A from the perspective of promoting desirable M&A activities that contribute to enhancing corporate value. In addition to requiring a certain level of fairness in M&A through provisions in laws such as the Companies Act and the Financial Instruments and Exchange Act, Japan has sought a balance between promoting desirable M&A activities and ensuring M&A fairness through interpretations of directors’ duties, judicial precedents, and various guidelines. In particular, Japan has effectively utilized various guidelines to outline the fundamental approach required in M&A situations, as well as to suggest issues for review and appropriate responses depending on specific circumstances. In situations where empirical evidence is lacking to demonstrate that fairness assurance measures in M&A protect minority shareholders’ wealth, and especially in contexts emphasizing bold corporate reforms to enhance corporate value, it is essential to allow for flexible application of fairness measures based on individual circumstances. In this regard, Japan’s approach of using a ‘soft law’ perspective provides valuable insights for us. In Japan, special committees are widely utilized as fairness assurance measures, with an emphasis on substantive rather than merely formal implementation. Key considerations include the timing of establishment, composition and remuneration of the committee members, confirmation and review of plans, handling of decisions, involvement in negotiations of transaction terms, and the appointment of advisory bodies. Some aspects were partially mandated due to their relationship with the Corporate Governance Code or stock exchange regulations. These aspects could serve as useful references in future discussions in South Korea. However, this study has focused more on the majority-of-minority (MoM) vote of minority shareholders, taking into account recent amendments to the Commercial Act. In recent years, as management practices in Japan increasingly emphasize capital costs and stock prices, the number of MBOs is expected to rise, leading to heightened interest in additional fairness measures, such as the majority-of-minority (MoM) vote and fairness opinions. This trend is noteworthy for us as well, as it aligns with our goals of enhancing corporate value and encouraging proactive business restructuring. However, in the case of the MoM vote, its use has been broadly allowed as an exception due to concerns about its potential to hinder M&A activities and the possibility of utilizing other fairness assurance measures. This suggests that there are limitations in prescribing the ideal contexts and methods for employing the MoM vote and indicates that regulating its use through legislation may not be appropriate.