삼성물산 합병을 통해 바라본 주주이익 보호의 문제점과 개선방향 - 에버랜드의 재림(再臨), 그 극복을 위한 제언 -

Abstract

With respect to the merger between Cheil Industries Inc. and Samsung C&T Corporation(hereinafter, “the Company”), there are three issues that can be discussed in light of shareholders’ proportionate interests and unjust wealth transfer between affiliate group shareholders and the residual non-group shareholders. The first question is the timing and the disclosure as to the merger. This question will include how the merger was timed and how the information thereof was disclosed in order to address the conflict of interests of the directors of the Company who were appointed by Samsung Group. Weinberger v. UOP case (Del. Suppr. 1983) will shed much light on this issue, where the court ruled that fiduciary duty shall include the question of how the transaction was timed, initiated, and structured in a self-dealing situation. The second question is whether the directors took any actions to explore other options than the merger which should be subject to the Capital Market Act, where the merger ratio would not be favorable towards the non-group shareholders in the Company. The alternative option would include to distribute to the shareholders or sell in the market the listed stocks which the Company held and of which the market value was higher than that of the Company itself. The third question is the Revlon duty under the sale of control situation in light of that the Company’s ownership structure would be changed from “fluid” or “weekly concentrated” to “concentrated” or “significantly concentrated” due to the merger with Cheil Industries Inc., which had the higher concentrated ownership structure. This feature is in the wake of Paramount v. QVC Network the Delaware case and Revlon. While these issues are essential for the shareholder interests, they were not spotlight in the litigation in Korea between the Company and Elliot, the hedge fund. The reason is due to two factors: one is the Korean Supreme Court’s ruling under Everland case which declared that shareholders’ interests are not protected by the fiduciary duty of the corporate directors, and the other is the Korean Commercial Codes which is hardly aware of the notion of affiliate entities and conflicts of interests between shareholders. These two are the main factors of so called “Korea Discount” in the Korean stock market, which should be lifted and revised by introducing the notion of corporate fiduciary duty towards the proportionate interests of shareholders as in the US corporate laws.