독일법상의 소수주주 강제축출제도에 관한 연구

Abstract

A court of the United States (“U.S.”) approved of the legality of cash-out merger that allows a controlling shareholder to forcibly exclude minority shareholders, who oppose a merger, from the company from the 1970s. The system for compulsory purchase of minority shares, which originates from the U.S. law, is being adopted by most of the European countries, including Germany, and furthermore, is being spread globally. The systems for compulsory purchase of minority shares of each nation show a slight difference regarding the contents, such as the ratio of owned shares or company qualified to apply. The Commercial Code of Korea, which was revised in 2011 based on the legislation of the U.S. and Germany, newly established a system for total acquisition of minority shares, which allows a controlling shareholder to forcibly purchase the shares of minority shareholders in the event that the controlling shareholder owns 95% or more of the outstanding shares and allows minority shareholders to claim to controlling shareholders to purchase the shares they own. The reason such revision was made in the Commercial Code was “to allow to resolve the partnership relationship by the purchase of the shares of minority shareholders by the majority shareholders, because the company must spend managerial expenses relating to operating the general shareholders’ meeting and minority shareholders would be prevented from normally gathering their investment, in the event a particular shareholder owns most of the shares.” However, despite such advantage, the issue of bringing a constitutional appeal is being raised based on the fact that “there is a huge possibility of infringing the property rights because the shares must be sold irrelevant of the intent of the shareholders.” In addition, the fact that “there is a possibility that the majority shareholders may abuse the system” was pointed out, because the conditional provision stating that, ‘in the event it is necessary to achieve a management objective,’ as regulated in Article 360-24 Clause 1 of the Commercial Code,’ is ambiguous. The suppression over minority shareholders and compulsory exclusion due to the system for total acquisition of minority shares may incur disadvantage to the minority shareholders, and accordingly, a systematical supplementation allowing to protect the minority shareholders while preventing the abuse of the system would be needed. In other words, a controlling shareholder may exclude a minority shareholder based on an unreasonable price by using a superior status, and therefore, the sales value of minority shares must be arranged in a fair manner to protect the rights of minority shareholders. Korea may want to consider conducting a propriety evaluation of the sales value through an expert examiner appointed by the court, as in Germany.