기업재편의 활성화와 그 딜레마 - 회사분할, 주식양수도에 관한 회사법 개정안들을 중심으로 -

Abstract

Strong M&A activities are of great importance to economic dynamics of a country as well as growth of an enterprise. Korean government has shown keen interest in preparing business friendly M&A rules, as witnessed by a reform bill submitted by the Ministry of Justice in 2014. Flexible M&A rules, however, often risk the interest of minority shareholders because a transfer of wealth might be secretly and implicitly made under the process of complicated M&A deals. This paper is to analyze two bills recently submitted by the Members of the National Assembly. Balancing the initiative by the government in favor of the business community, those bills are focused upon the protection of minority shareholders. The paper is to deal with the uneasy task how to reconcile the conflicting goals of adopting business friendly M&A rules and providing sufficient protections for minority shareholders. First part of the paper is concerned with corporate division (or demerger). The Korean Commercial Code (“KCC”) has provided detailed provisions on corporate division. The corporate division regime under the KCC adopted in 1998 is frequently used for the purposes of corporate restructuring. In a corporate division, the shares of new entity (Y) separated from the old company (X) are supposed to be distributed to incumbent shareholders of X, which makes the shareholding ratio of Y just the same as that of X. The problem begins where X has treasury shares: dominant Korean business practices allow the distribution of Y shares even to those treasury shares. Accordingly, as far as Y is concerned, the controlling shareholders of X get strengthened grip thanks to the existence of treasury shares in X. For example, if X’s shares were owned by P(42%), Q(28%) and X(30%, treasury shares) and some business department of X was separated into new company Y via corporate division, P’s actual ratio in Y shall be drastically increased to 72% {42% + 30%(held by X which is controlled by P)}. The new bill prohibits the distribution of new shares to treasury shares. While some concern was raised that such reform shall chill corporate division activities, the new bill seems to be in the right direction. The current practice is far from creating values from M&As but serves the benefit of controlling shareholders to the detriment of minority shareholders. Second part is about the shareholder approval upon controlling share block sales. Unlike statutory merger and comprehensive business transfer, the KCC has not required any shareholders’ control in case of share deals. The new bill, however, adopted a requirement of the shareholders’ special resolution provided that the size of the share deals is quite large (i.e. 50% or more of the net asset of the transacting party). The paper thoroughly reviewed the rationales of the new bill from the theoretical basis as well as comparative legal analysis. Under the author’s opinion, the new bill seems persuasive as far as it requires the approval of the shareholders’ meeting in an acquiring company. There have been many cases in Korea that controlling shareholders and directors, due to their ambition to enlarge their conglomerate, failed to correctly estimate the value of target company’s shares, ending up so-called winner’s curse. The scope and specific requirements of the shareholders’ approval under the new bill, however, need to be streamlined.