주주보호의 관점에서 본 합병법제의 문제점과 개선방안

Abstract

A merger is a major restructuring or corporate acquisition method under corporate law, where two or more companies combine into one. During the merger process, there can be a company whose corporate status is dissolved (dissolved company) and a company whose corporate status continues (surviving company). However, shareholders of the dissolved company receive shares of the surviving company in place of their original shares, and shareholders of the surviving company experience changes in their shareholding ratio as the shareholders of the dissolved company become new shareholders of the surviving company. In this legal process of changing interests, damages can occur to the shareholders of the merging companies, necessitating shareholder protection. In this sense, the "fairness of the merger" is an essential requirement, and for this, the value of shares before and after the merger must be guaranteed for shareholders. Recently, many corporate groups have been merging affiliated companies in ways that harm shareholders' interests, and such mergers are mostly advantageous to the controlling shareholders of the corporate group, which raises further issues. These mergers are formally carried out in accordance with relevant laws but substantially result in illegal outcomes that damage the shareholders of one party in the merging companies. A representative example of this was the Samsung C&T merger case. Despite sufficient criticism of the issues surrounding this merger case, similar mergers have continued up to the present, and the Korea Commercial Ac(KCA)t and the Korea Capital Market Act(KCMA) have failed to regulate these problems, further exacerbating damages to shareholders. In this respect, there is a need to improve the legal framework on mergers under the KCA and KCMA to protect the interests of shareholders through desirable improvements in merger legislation. For these reasons, this article points out the following problems of merger legislation from the perspective of shareholder protection: ① inadequate merger disclosure, ② unfair merger ratios and the calculation of merger consideration, ③ the practically ineffective litigation for annulment of a merger. In response, the following improvement measures are proposed: (1) Considering foreign legislative examples and recent legislative trends in commercial law, the pre-merger disclosure regulations stipulated in the Commercial Act (Article 522-2 of the Commercial Act) need to be amended. It is also necessary to add disclosure procedures to protect shareholders' interests in intra-group mergers, referencing the examples from the enforcement regulations of the Japanese Companies Act in the Enforcement Decree of the Capital Market Act. (2) It is necessary to consider the introduction of the "merger inspector system" under German law as a procedural control measure for mergers and review the designation of external evaluation agencies directly by the Korea Securities and Futures Commission for mergers between affiliated companies. (3) It is unreasonable to legally mandate market value as the sole criterion for evaluating corporate value in mergers in Korea. Therefore, Article 176-5, Paragraph 1 of the Enforcement Decree of the KCMA should be repealed, and a new method for calculating merger ratios should be introduced. (4) It is necessary to consider introducing the preliminary injuction for a merger under the Japanese Companies Act as a remedy for illegal or unfair mergers and to adopt the compensation claim system under the German Reorganization Act as an alternative to the practically ineffective merger annulment blitigation. (5) KCAt should explicitly impose on directors the duty to make decisions that protect shareholders who may suffer substantial damage due to the determination of merger ratios.