구조적 이해상충이 내재된 M&A의 공정성 확보 방안

Abstract

Mergers and Acquisitions(M&A) has significant implications in the corporate ecosystem as a means of optimizing a company's business portfolio and as a means of efficiently transferring resources. M&A, which has built-in structural conflicts of interest, also has a positive effect if fairness is secured. Therefore, in this paper, we considered with regard to the practical response to securing the fairness of the transaction conditions in M&A with embedded structural conflicts of interest. In Korea, there are means to ensure fairness of M&A. ① There are direct regulations, such as those in the Financial Investment Services and Capital Markets Act on how the transaction amount is calculated. ② There are also indirect regulations such as meeting of shareholders, information disclosure regulations, and devices for realizing regulations by forming precedents(liability suits for damages, rights of dissenting shareholders, etc.). As for ①, however, many view this negatively, such as the realistic reason that the market price is absolutely unreliable and the fact that it cannot clearly explain the areas that should be restricted to transactions between independent parties. Taking a negative stance on basically ①, this paper focused on an effective practical response that should be drawn in the process of realizing fair trade conditions through indirect regulatory methods. It is the establishment and operation of an independent third party committee. Already, in the United States and Japan, a third party committee is evaluated as an effective means of ensuring the fairness of the M&A process and the validity of the terms of the transaction. Given that the role expected from directors and shareholders in M&A is different, the significance of the third party committee is not negated, even if a highly effective device, such as the majority of minority(MoM), is available. For this reason, the establishment of a third party committee is being actively utilized in M&A with embedded structural conflicts of interest. In addition, the relevant discussion extends beyond the setting up of the third party committee to the practical level of the actual role of the third party committee. However, since the establishment of a third party committee has a problem of cost, it is necessary to answer what utility the establishment of a third party committee can bring and whether the effectiveness of the third party committee can be expected to be above the cost and the M&A party can expect to set up a third party committee voluntarily. For this reason, a systematic review was carried out in this paper, with the necessity, role and related issues of the third party committee in view.