지주회사 설립·전환시 포괄적 주식교환·이전의 실무상 쟁점

Abstract

Comprehensive share exchange and comprehensive share transfer (a ʻʻShare Exchangeʼʼ) is a useful procedure that helps facilitate the fast and efficient formation of a wholly-owned holding company system. In practice, since the amendment of the Financial Holding Company Act in 2000 and the Korean Commercial Code (the ʻʻKCCʼʼ) in 2001 introduced the Share Exchange procedure, many companies have utilized the Share Exchange procedure in the process of the formation or change of the holding company system (the ʻʻFormation of the Holding Companiesʼʼ). This paper reviews the cases of utilizing a Share Exchange procedure in the process of the Formation of Holding Companies and adding subsidiaries to them, and examine practical issues in the course of a Share Exchange. Firstly, many holding companies, such as Woori Financial Holding Company, Hana Financial Holding Company and Shinhan Financial Holding Company have experienced difficulties in solving the Mutually Owned Stock (defined below) issue. The KCC, in principle, prohibits a subsidiary's acquisition of shares of the parent company (ʻʻMutually Owned Stockʼʼ); provided however, if a subsidiary inevitably acquires Mutual Owned Stock due to a Share Exchange, the subsidiary shall dispose of the Mutually Owned Stock within a grace period of six months. The Financial Holding Company Act prescribed limited exceptions for a financial holding company to which applies an extended grace period of three years. However, the three-year grace period should be applicable to wider exceptions. Besides, according to the Monopoly Regulation and Fair Trade Act, any company belonging to an enterprise group subject to the limitations of mutual investment shall not acquire or own a Mutual Owned Stock and does not prescribe any exception in the case of a Mutually Owned Stock resulting from the Stock Exchange. However, there should be an exception for Mutually Owned Stock resulting form the Stock Exchange. Secondly, since the most important factor to shareholders in connection with the Stock Exchange is the exchange rate, the most frequent issues raised by shareholders of the company are related to the exchange rate. Some minority shareholders have argued that the provisions of the Capital Market and Financial Investment Business Act regarding the assessment of exchange rates in a Share Exchange involving listed companies were unconstitutional. Minority shareholders further argued that a tender offer should be mandatorily forced during the Share Exchange. However, the current regulations on the exchange rate based on the market price are reasonable, and the introduction of the mandatory tender offer during the Share Exchange is not appropriate since it is in conflict with the purpose of a Share Exchange. Lastly, some argue that the status of the dissenting shareholders who exercised appraisal right during the Stock Exchange procedure is the same as those who exercised the appraisal right during a merger. The prevailing view in South Korea, including the Korean courtʼs opinion, is that the dissenting shareholder shall not lose her status as a shareholder until she receives fair compensation. However, in my opinion, even if there is any dissenting shareholder who has not received the compensation, she should lose her status as a shareholder as of the exchange date. As such, the author argues that additional legislation should be made to clarify the status of the dissenting shareholders.