会社の支配権の争奪と主要目的ルール

Abstract

There is no provision in the Japanese Corporate Code on whether it is permissible for a target's board to take defensive measures against hostile takeovers. This kind of legal problem involves the rule of primary purpose, which has been created by the courts. The Tokyo High Court in the Livedoor litigation adhered to the rule of primary purpose and enunciated it as follows: Where a contest for corporate control emerges, if the primary purpose of the target corporation in issuing shares (or warrants) to a white knight is to preserve or protect management's control rights, the issuance should be enjoined as “grossly unfair,” since it violates the theory of division of authorities. The Court clarified that management should not intervene in the contest for corporate control and that the shareholders should decide the winner. The Court also declared an exception to the rule: If the hostile bidder has the abusive motive of exploiting the target corporation, the target's issuance of shares (or warrants), whose primary purpose is to preserve the management's right of control, may be permitted to the extent the defensive measures are recognized as necessary and appropriate. Even though this is only obiter dictum, the court's opinion has had an influence on business. The rule of primary purpose has the function of regulating the target's management. The courts have based their decisions on the rule and stated that the target's management should not intervene in the contest for corporate control; the decision of whether the target should take defensive measures must be made by the shareholders. However, shareholders are not good decision-makers regarding hostile takeovers, which involve skilled business judgment. Moreover, for the target corporation, it is difficult to apply the exception to the rule. It is time to consider how to enact takeover law that can deal with the problems arising from the rule of primary purpose.