삼성물산과 엘리엇간의 소송상 쟁점사항과 그에 관련된 현행 법제의 문제점 검토

Abstract

Under the Commercial Act, in order to effect a merger of companies, a written agreement for a merger shall be prepared and be approved by a general shareholders' meeting(§522(1)), a summary of the written agreement of a merger shall be stated in notice and public notice under Article 363(§522(2)). Under the Financial Investment Services and Capital Markets Act(hereinafter referred as "FISCMA"), meanwhile, a stock-listed corporation shall comply with the guidelines, such as requirements, methods, etc. prescribed by Presidential Decree when it conducts merger with another corporation(§165-4(1)). Namely, in cases of a merger between stock-listed corporations, as of the day preceding the earlier of the date when the resolution of the board of directors is made for the merger or the date when the merger contract is concluded, the lower value of the average of the closing prices(average closing price for the latest one month, average closing price for the latest one week, closing price on the latest date(FISCMA Presidential Decree §176-5(1)-1). Recently, it took place the merger of Samsung C&T and Cheil Industries. And so Lee Jae-yong of Samsung Electronics Vice President is be the largest shareholder of Samsung C&T, and a succession management control operations are subject to elasticity, the governance structure of Samsung Group was intricately simplified. By the way, Elliott which is US-based hedge funds were applying for a court injunction, while pointing out unfairness purpose and ratio of the merger and illegality of treasury shares sold. This was recently decided against the Seoul Central District Court and the Seoul High Court, but the appeal was made to the Supreme Court for some of them. Furthermore, Elliot is still likely to raise further litigation. The Samsung C&T claims complements the deficiencies and will to create synergy effect in the merger, but there is no denying that the purpose of the succession of management rights are involved. Meanwhile, activist hedge funds is intensifying, shareholder rights for hostile M&A is being done through the event. Thus, this claim should defend management control of domestic companies appearing again. And it turned out to be domestic legal issues related to the merger in the merger of Samsung C&T and Cheil Industries. Therefore, it is necessary to analyze in depth the legal issues raised at this merger in order to prevent other similar problems in the future and to establish a more rational legal system and method. In this paper, thus, I have investigated the legal and practical problems relating to purpose and ratio of merger, methods of merger price, disposition and acquisition of Company's Own Shares, minority shareholder rights, rights to injunction, appraisal rights of opposing shareholders under the Commercial Act and FISCMA, and suggested the settlement methods such legal and practical problems.