일본 금융상품거래법상 강제공개매수제도의 제유형과 그 법적 시사점

Abstract

The rules on Tender Offer in the Japanese Financial Product Exchange Act have frequently been reformed since its first introduction in 1971, which was based on the pro-rata rule, modeled after that of the American 1934 Securities Exchange Act. The most reformative change was so called one-third rule, firstly introduced in the 1990 revision of the Act, in which any who acquires more than one-third of all outstanding shares with voting right has to mandatorily buy it by a tender offer even in the privately negotiated control transactions being made out of the open market. Since 1990, the one-third rule has been extended to the after-hours trading of stocks in the exchange market, the controlling shareholder already owning more than one-third trying to buy more than 5% of the target's all of outstanding shares during a third party's tender offer period and a speedy and creeping acquisition of more than one-third of all the shares, in which more than 10% has to be bought in both open market and out of the market and also more than 5% has to be bought in the out-of market and by after-hours trading in the exchange market. Moreover, any who owns more than two-thirds after closing of tender offer has to buy all tendered shares exceeding over the projected quantity to buy. After implementation of various mandatory tender offers, Japanese tender offer legal system has become closer to that of the U.K, but is quitely different. It is peculiar and unique with comparison to the international takeover legislation trends. This paper analyses and reviews all types of Japanese Mandatory Tender Offers in legally comparative perspectives and suggests some legislative recommendations. In short, Japanese one-third rule has to be introduced in the private sale of controlling shares, which means private transaction with less than 10 shareholders within six months out of the exchange market under the current Korean Capital Market Act, and also the rule has to be subject to the pro rata basis. The Japanese mandatory duty to buy all the shares more than two-thirds tendered is to be changed to the right of compulsory acquisition, in which tender offeror has to buy all the shares tendered and not tendered under the condition that more than 95% shares are tendered, no matter the quantity of shares to buy. But, the Japanese current controlling shareholder's duty to buy more than 5% by the tender offer is not recommended, because it seems to be illegitimate. In conclusion, the above recommending suggestions are expected to vitalize the market for the corporate control and contribute to enhancing the management control by regulating the privately negotiated control transactions. More important thing is that Korean Capital Market Act functions to effectively regulate both private and public control transactions being made out of exchange market by a single tender offer rule and also to reasonably balance the conflicts of interests between majority and minority shareholders in the control shift.