소수주식의 강제매수제도 활용 제고 방안

Abstract

This article compares and analyzes the controlling shareholders’ rights to request sale (hereinafter ‘CRR’) and the consolidation of shares stipulated in the Commercial Act, analyzes the reasons for the high use of the special controlling shareholders’ right to request sale(hereinafter ‘SCRR’) in Japan, and considers the implications for the Korean legal system, based on the issue of whether it is possible to oust minority shareholders by circumventing the CRR and using the consolidation of shares. Although Japan introduced the SCRR later than Korea, it has established itself as a system for ousting minority shareholders. The SCRR has significantly shortened the time required for Cash out and corporate reorganization. However, Korea has introduced the CRR to be used as a system to eliminate minority shareholders, but there are not many cases of utilizing the above system, and it seems that there are many cases of using the consolidation of shares to eliminate minority shareholders by circumventing the system. In order to improve the use of the CRR as a minority shareholder removal system, it is necessary to relax the requirements of CRR. First, the controlling shareholder requirement needs to be relaxed. Korea’s controlling shareholder requirement is “95% or more of the total number of issued and outstanding shares”, but each country has a different controlling shareholder requirement, and Korea’s Commercial Act allows reorganization to proceed as a summary procedure if the controlling shareholder holds “90% or more of the total number of issued and outstanding shares.” In light of the fact that there were conflicting views during the legislative process of the compulsory purchase system for minority shares, it is necessary to consider setting the controlling shareholder requirement to 90% of the total outstanding shares like other reorganizations so that the compulsory purchase system for minority shares can function properly as a minority shareholder ouster system. Second, it is necessary to delete “managerial objectives” from Article 360-24 (1) of the Commercial Act. Compared to the legislative examples of the United Kingdom and Germany, which stipulate a compulsory purchase system for minority shares, Korea is the only country that stipulates a business purpose. The business purpose of the compulsory purchase system for minority shares in Korea is derived from merger cases in the United States, where the business purpose is a requirement to protect minority shareholders. Since the compulsory purchase system of minority shares is aimed at dissolving the partnership by acquiring the remaining shares of the controlling shareholder, it is not reasonable to require a separate business purpose. Therefore, it is reasonable to remove the business purpose from the compulsory purchase system for minority shares. Third, it is necessary to introduce a system of advance payment of share price in determining the share price. Unlike Korea, Japan allows special controlling shareholders to pay what they consider to be a fair price and deposit the purchase price with the Legal Affairs Bureau even before the court determines the share price [Article 179(8)(3) of the Companies Act of Japan]. In Korea, when a controlling shareholder exercises its right to sell, it often applies to the court to determine the share price, which takes a considerable amount of time, making it difficult to reorganize quickly. Korea needs to introduce a system of advance payment of stock price to enable rapid corporate reorganization.