지배권 프리미엄의 표현으로서 ‘다수지배원칙’과 통제장치로서의 지배주주의 충실의무
Majority Rule As an Expression of Controlling Shareholders’ Premium and Their Fiduciary Duties as a Controlling Mechanism
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Because there are costs associated with holding a concentrated positionand with exercising the monitoring function, ‘some private benefits ofcontrol’(ie. ‘control premium’) may be necessary to induce a party to playthat role. As long as the benefits from reduction in managerial agency costsare greater than the costs of private benefits of control, minorityshareholders will prefer the presence of a controlling shareholderHowever, the concept of the control premium has not been expresslydeclared in an objective legal principle due to the difficulty in calculation byany objective formula: the costs are variable and determined by theindividual preference of the controlling shareholders for the risk associatedwith holding the controlling position. It is argued here that instead ofexpressing the premium in objective legal standard, the corporate lawdeclares the premium as practicable legal rules. One is the majority votingrule and the other is the business judgment rule. Instead of requiringunanimity requirement necessary in partnership relationships, the corporatelaw allows the controlling shareholder to form shareholders' collectiveopinion by majority vote. As the majority voting rule enables the controllingshareholders to save negotiation costs in forming unanimous opinions, themajority rule can be seen as a typified example of the premium. The majority rule in board meeting also works as the premium in that the rulereduces the controlling shareholders' controlling costs associated withappointing and controlling whole members of the board. The businessjudgment rule also works to the controlling shareholders' premium in that itenables the courts to respect their strategic judgments favoring controllingshareholders : as long as the board decisions are business and strategicdecisions that equally affect the controlling and non-controlling shareholders,the courts may treat them as business judgments, and thereby put outsidethe realm of intrusive judicial review. But, the operation of the control premium has to be stopped in respectof certain exceptional transactions, from which private benefits are too easilyextracted by the controlling shareholders. One of such transactions is aself-dealing or an intra-group transaction favoring the member company withhigher controller's shares. In addition, where the extracted private benefits ofcontrol are unfairly prejudicial to minority shareholders, there should be anintervening mechanism for the courts to review the fairness of the amountof the control premium in question. One option is to introduce the Britishstyle of unfair prejudice remedy, and the other is to impose fiduciary dutiesupon controlling shareholders as in the United States.
Abstract
Because there are costs associated with holding a concentrated positionand with exercising the monitoring function, ‘some private benefits ofcontrol’(ie. ‘control premium’) may be necessary to induce a party to playthat role. As long as the benefits from reduction in managerial agency costsare greater than the costs of private benefits of control, minorityshareholders will prefer the presence of a controlling shareholderHowever, the concept of the control premium has not been expresslydeclared in an objective legal principle due to the difficulty in calculation byany objective formula: the costs are variable and determined by theindividual preference of the controlling shareholders for the risk associatedwith holding the controlling position. It is argued here that instead ofexpressing the premium in objective legal standard, the corporate lawdeclares the premium as practicable legal rules. One is the majority votingrule and the other is the business judgment rule. Instead of requiringunanimity requirement necessary in partnership relationships, the corporatelaw allows the controlling shareholder to form shareholders' collectiveopinion by majority vote. As the majority voting rule enables the controllingshareholders to save negotiation costs in forming unanimous opinions, themajority rule can be seen as a typified example of the premium. The majority rule in board meeting also works as the premium in that the rulereduces the controlling shareholders' controlling costs associated withappointing and controlling whole members of the board. The businessjudgment rule also works to the controlling shareholders' premium in that itenables the courts to respect their strategic judgments favoring controllingshareholders : as long as the board decisions are business and strategicdecisions that equally affect the controlling and non-controlling shareholders,the courts may treat them as business judgments, and thereby put outsidethe realm of intrusive judicial review. But, the operation of the control premium has to be stopped in respectof certain exceptional transactions, from which private benefits are too easilyextracted by the controlling shareholders. One of such transactions is aself-dealing or an intra-group transaction favoring the member company withhigher controller's shares. In addition, where the extracted private benefits ofcontrol are unfairly prejudicial to minority shareholders, there should be anintervening mechanism for the courts to review the fairness of the amountof the control premium in question. One option is to introduce the Britishstyle of unfair prejudice remedy, and the other is to impose fiduciary dutiesupon controlling shareholders as in the United States.
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