2015년 개정 상법의 주요 내용과 기업의 실무 대응

Abstract

The amended Korean Commercial Code (“KCC”) in 2015 newly stipulated the triangular reorganization system including the triangular share exchange and triangular merger through division. In addition, the amended KCC stipulates and modifies the dissenting shareholders’ appraisal rights, alleviated requirements on governing small-scale exchange, regulated requirements for small-scale mergers, simplified business transfer system, and prescribed the liabilities pursuant to the division and stock for non-stock division merger as part of the major regulation relating to corporate division merger. Such amendments were made as an effort to effectively respond to a situation in Korea where new business development and restructuring throughout various industries are being required due to the global economic depression following the financial crisis. Notably, a large part of the amendments to the KCC focuses on stipulating M&A transactions. In consideration of the modifications made to the Japanese regulations on M&A transactions have greatly contributed to Japan’s corporate restructuring and cross-border M&A transactions, it is expected that the amended KCC on triangular reorganization will generate similar contributions to M&A transactions in Korea; the amended KCC will not only facilitate M&A transactions, establish efficient restructuring process throughout various industries, and create new business but also lay foundation for the companies to expand their businesses overseas. In regards to the newly implemented triangular reorganization regulation (on triangular share exchange and triangular merger through division), a party to the transaction may consider various options in providing the parent company’s stock (new stock or one’s own stock) as a consideration for the stock exchange or division merger transaction. The party’s option will depend on the reasonableness of the time, tax expenditure and other costs spent on the transaction under each option. Meanwhile, as cross border M&A commonly takes form in a share exchange or triangular reorganization, the amended KCC will be more suitable to facilitate international M&A transactions. With the compiling domestic M&A experience under the amended KCC, domestic companies may actively pursue overseas M&A transactions, which will significantly contribute to efficient restructuring various industries and strengthening the competitiveness of the newly formed businesses in Korea.