물적분할과 자회사 상장 시 소수주주 보호에 관한 연구 - 지배주주의 충실의무를 중심으로 -

Abstract

A split-off under the Korean commercial act is a type of a corporate division where the shares of a new organized company are issued to its parent company in exchange for the transferred business, and then such new organized company becomes an 100% subsidiary of the parent company. However, in case that a listed company became a parent company of its subsidiary through a split-off and then the subsidiary goes public the measures to protect the minority shareholder of the parent company have been the social issues. A shareholder has the position of a shareholder who participates in management or monitors management as a member of a company, and the position of a shareholder who pursues return on investment as a capital investor. The protection of the minority shareholder in a split-off is accepted because of the minority shareholder’s position as a capital investor. The measures to protect the minority shareholder in a split-off include (i) granting the appraisal rights to the shareholders of the parent company, (ii) granting the preemptive rights to the shareholders of the parent company, (iii) preferentially allocating the new shares of the subsidiary to the shareholders of the parent company, (iv) limiting the voting right to 3% in case of a corporate division (v) prohibiting chain-listing, (vi) strengthening the disclosure and the listing screening, (vii) imposing the duty of loyalty to the shareholders on a director. Granting the appraisal rights to the minority shareholder of the parent company, and strengthening the disclosure and the listing screening can be the meaningful alternatives, but the others are unlikely to be the effective alternatives. It should be considered that the protection of the minority shareholder of the parent company in a split-off and listing the subsidiary is essentially a matter of balancing the interests of a controlling shareholder and the minority shareholder of the parent company. Therefore, imposing the duty of loyalty to the minority shareholder on a controlling shareholder can be a fundamental alternative. If a controlling shareholder’s duty of loyalty to the minority shareholder is accepted, a split-off and listing the subsidiary that violate a controlling shareholder’s duty of loyalty would be illegal, which can be an object of legal action. Therefore, a controlling shareholder’s duty of loyalty to the minority shareholder will be the legal norms that can protect the minority shareholder, and it can be a practical limitation of a split-off and listing the subsidiary decision of the controlling shareholder. Even if a controlling shareholder’s duty of loyalty to the minority shareholder is accepted, a controlling shareholder’s duty of loyalty is different from that of a director. A controlling shareholder’s duty of loyalty should include the fact that the controlling shareholder is able to exercise its rights as a shareholder, and so a controlling shareholder’s pursuit of private interests should be basically allowed. However, if the controlling shareholder’s pursuit of private interests is exercised in an illegal or deceptive manner and so it seriously infringes on the interests of the minority shareholder, if the controlling shareholder pursues only its private interests, or if the controlling shareholder’s pursuit of private interests causes significant and irreparable damage to the interests of the minority shareholder, the controlling shareholder’s pursuit of private interests violates the duty of loyalty. Therefore, the Korean commercial act should accept a controlling shareholder’s duty of loyalty, and then the contents and the requirements of violation of a controlling shareholder’s duty of loyalty in the split-off and listing the subsidiary cases should be determined in detail.