상법상 소수주주 축출 방안과 관련한 법률상·실무상 쟁점- 지배주주의 매도청구권, 교부금합병, 주식병합을 중심으로 -

Abstract

Under the Korean Commercial Code (“KCC”) which has recently been amended as of April 15, 2012, three routes could be explored to squeeze out the minority shareholders of a Korean company: (i) compulsory acquisition by a controlling shareholder of all shares held by the minority shareholders, (ii) a cash-out merger whereby the minority shareholders will be paid cash consideration instead of shares in the surviving entity, and (iii) a reverse stock split (stock consolidation) in which a large number of outstanding shares of the Korean company would be consolidated into fewer shares by increasing the par value such that the minority shareholders will only have fractional shares. The third route referred to above, i.e., the reverse stock split, would be the most tax efficient structure. However, it is doubtful that this route would be permissible for squeeze-out purposes, because the KCC allows a reverse stock split only under limited circumstances (such as a capital reduction) and, unlike under the compulsory acquisition and cash-out merger structures, the minority shareholders would not be granted an appraisal right for minority shareholder protection . The cash-out merger has advantages as a means to squeeze out minority shareholders. Among other things, unlike with respect to the compulsory acquisition, the KCC does not expressly require a “business purpose” for a cash-out merger. In addition, the minority shareholders lose their status as shareholders upon the registration of a merger with the corporate registry even if consideration for the merger is still in dispute. Nevertheless, the cash-out merger also does not seem feasible or viable for a squeeze-out. One important reason is that, under the relevant Korean tax laws, if a merger does not constitute a tax-qualified merger, significant negative tax implications arise, and a cash-out merger conducted for a squeeze-out generally cannot meet the requirements of a tax-qualified merger. Also, many cash-out merger structures would probably be deemed violative of the principle of equality of shareholders, which is one of the fundamental principles underlying the KCC. Furthermore, even if the KCC does not expressly require a “business purpose” for a cash-out merger, it is arguably an implied requirement for a cash-out merger in the context of a squeeze-out and a good case could be made that such a cash-out merger lacking a “business purpose” is prohibited as circumvention of law. The compulsory acquisition right, newly introduced under the recent amendment of the KCC as of April 15, 2012, permits a controlling shareholder holding for his or its account 95% or more of shares in a company to require minority shareholders to sell their shares to the controlling shareholder at an agreed price or a fair price determined by the court if no agreement is attainable. The KCC imposes several conditions and requirements for a compulsory acquisition, including the above-mentioned requirement that a compulsory acquisition be necessary to accomplish a “business purpose."Even if the amended KCC expressly provides for the compulsory acquisition right, there are still ambiguities that have yet to be clarified. Complicated legal issue would arise as to, among others: (i) who should be viewed as the controlling shareholder; (ii) what constitutes a “business purpose”; (iii) when minority shareholders lose their status as shareholders if the purchase price for the compulsory acquisition cannot be agreed upon; and (iv) when interest on the purchase price starts to accrue. The legislative may need to take a proactive approach in clarifying the ambiguities. Before such legislative action, however, rational interpretations of the newly introduced KCC provisions would be necessary to promote the compulsory acquisition. The authors hope that this article would provide a basis for such rational interpretations.