기업구조조정 수단으로서의 소수주주의 축출과 소수주주의 보호문제

Abstract

The squeeze-out or freeze-out and cash-out plans of the revised Korean Commercial Code of 2011 was introduced as a restructuring institution for corporations to improve efficiencies and cost savings in company management. A freeze-out merger is a technique by which one or more shareholders who collectively hold a majority of shares in a corporation gain ownership of remaining shares in that corporation. However, an abusive use of the squeeze-out plan may result in an unjust ousting of the minority shareholders. Also, when this technique is employed, the minority shareholders are forced to accept cash payment for their shares. With regard to the present rules regulating freeze-out mergers, two issues are being discussed. One is protecting the interests of the minority shareholders, and the other is fairly evaluating the minority shares in order to compensate the acquisition by cash payment. The Delaware courts have applied an "entire fairness" standard to review freeze-out transactions, under which two basic aspects of fairness, fair dealing and fair price, will be assessed to determine whether a transaction, viewed as a whole, is entirely fair. The recent decision by Delaware Vice Chancellor Laster, In re CNX Gas Corporation Shareholders Litigation, developed the “unified standard” for reviewing the controlling shareholder's freeze-out 74 法曹 2013․1(Vol.676) transactions. This unified standard provides that the business judgment rule is applicable for freeze-outs that are both: (1) negotiated and recommended by the special committee, and (2) “approved” by the majority of the minority shareholders. This writer proposes that (1) the Korean court should recognize entire fairness standard in reviewing the freeze-out transactions, (2) the minority shareholders' appraisal rights should be strengthened, (3) the shareholder injunction against the controlling shareholder should be newly introduced in the KCC, and as a prerequisite of said propositions, that the KCC should recognize the fiduciary duty of the controlling shareholders.(*)