회사 지배권에 대한 법적 분석 및 제도설계의 방향

Abstract

Until now, the shares owned by the controlling shareholder have been undoubtedly regarded to be private assets. Controlling shares, however, have de facto power of control on the company. Once dominating board of directors by the majority voting at the shareholdersʼ general meeting, controlling shareholder can control the companyʼs management, formulate its identity, and influence corporate value and every shareholderʼs interests. Thus, controlling shares shall not be considered as a purely private assets. Rather, public conception of the controlling shares shall be admitted in certain cases, when corporate value or shareholdersʼ interests might be infringed by the controlling power. Institutional regulation on the controlling shares can be devised as below. Firstly, private benefits of control shall be monitored and regulated. The constitutional rights of the corporation is extending, and the area of corporationʼs activity is not restricted to business any more. There is higher probability that private benefits of control may harm corporate value and other shareholdersʼ interests. In addition, the control premium shall not be monopolized by the controlling shareholder. Mandatory tender offer can be a proper method to protect the ratable interests of shareholders. Secondly, market for corporate control has ex-ante efficiency as well as ex-post efficiency in monitoring the controlling shareholder under the concentrated shareholder structure or the managers under the dispersed shareholder structure. Traditionally in Korea, the regulation of controlling shareholder has been undertaken through the state punishment power. In case a controlling shareholder breaches criminal law with embezzlement or misappropriation, prosecutor investigates the company, but such practice may shrink managements and market. Monitoring against controlling shareholder shall be mainly performed by market itself rather than prosecutor. Thirdly, succession of controlling power shall be predetermined to minimize any risk, which can arise from the decease of the controlling shareholder. Without disciplined successor, the controlling power cannot be appropriately performed, which might result in the decrease of corporate value and shareholder interests. If a controlling shareholder dies without designating his/her successor, the controlling shares shall be purchased by the company with a fair price, and the shares shall be sold to the highest bidder for the best interest of shareholders.