유럽회사법상 합병방식에 의한 회사설립절차 및 입법적 시사점

Abstract

In regulating procedures taken to establish a company, the Statute for a European Company does not regard whether or not it is headquartered in an EU country as an issue to be examined. In that respect, it seems appropriate that academic and business communities in Korea, anticipating participation from the ASEAN Economic Community and the East Asia Community, should start serious discussions and conduct studies on company establishment procedures and/or the processes required under the Statute for a European Company. Under the Statute for a European Company a company wanting to be fully qualified to operate within the EU must take one of the following forms: a holding company, a joint subsidiary company, a company created through a structural change of a pre-existing legitimate company, or a company created through a merger of pre-existing legitimate companies. This paper mainly discusses provisions of the Statute for a European Company on company establishment procedures through mergers and related issues. Part II examines procedures through mergers, rights of member countries to appeal, disclosure requirements for merger plans, disclosure of a notice of a merger plan, safeguards for shareholders and creditors, approval of merger plans, deliberation on the lawfulness of a merger plan, exclusion of merger repeal, and finally small-scale mergers. Part Ⅲ lists similarities and differences of the Statute for a European Company and Korean corporate law. In particular, the author suggests that Korean law, as with its European counterpart, also excludes any merger repeal system in execution. The Statute for a European Company requires the lawfulness of a merger plan to be examined and determined before the actual merger takes place (Article 25 and 26), which in effect removes the need to include any merger repeal device in the law (Article 30, Line 2). These two matters are among the most unique characteristics and important features. Even though Korean law also takes the approach of excluding merger repeal devices as provided in Directive 3, it is hardly applied to actual cases. From this perspective, the author advises that Korean corporate law require the lawfulness of a merger plan to be examined and determined prior to the actual merger in order to minimize any possible conflicts on fairness issues surrounding future merger activities among companies.