소수주주 축출제도의 도입에 관한 연구 － 도입형태와 가격산정을 중심으로－
Imminent Adoption of Squeeze-out Devices in Korea: What Should be Considered for Balancing Majorities and Minorities?
0
조회
0
다운로드
58
인용
0
참고문헌
키워드
초록
Since the Korean Ministry of Justice submitted its proposal to adopt squeeze-out devices, debates has been amounted over whether and how to allow squeeze-out. According to the Korean Commercial Code reform plan, U.S.-style cash-out merger and german-style buy-out by a dominating shareholder become feasible, given that fair compensation is awarded to minority shareholders. Unlike prior researches focusing how to revise or complement two devices aforementioned, this paper explores the fundamental risk attached to squeeze-out and the framework to control this risk. While squeeze-out may induce socially desirable transactions, it might be misused by controlling shareholders who have more inside informations and act opportunistically: an inefficient capital market could not prevent incumbent controlling shareholders from getting benefitted from squeeze-out when the stock price is underestimated In order to address the conflict of interest between majority and minority shareholders in squeeze-out, this paper categorizes the type of squeeze-out and methods of squeeze-out. The type of squeeze-out includes (i) where the incumbent control continues and (ii) where the incumbent control changes; the methods of squeeze-out includes (a) U.S. style cash-out merger, (b) german style buy-out and (c) U.K. style compulsory acquisition. The paper shows that the risk of misusing squeeze-out is relatively low where the incumbent control changes in executing squeeze-out. Also, the U.K. style compulsory acquisition has merits in terms of protecting minority shareholders from majority in squeeze-out. Combined altogether, the possibility of misusing squeeze-out scheme increases where the incumbent, without control change, executes cash-out merger or german style buy-out. Unlike the current proposal, the U.K. style compulsory acquisition might be a better option for squeeze-out in Korea. If the Korea is to adopt only cash-out merger and buy-out by dominant shareholders, more procedural control should be put on where incumbent control continues throughout the squeeze-out transaction.
Abstract
Since the Korean Ministry of Justice submitted its proposal to adopt squeeze-out devices, debates has been amounted over whether and how to allow squeeze-out. According to the Korean Commercial Code reform plan, U.S.-style cash-out merger and german-style buy-out by a dominating shareholder become feasible, given that fair compensation is awarded to minority shareholders. Unlike prior researches focusing how to revise or complement two devices aforementioned, this paper explores the fundamental risk attached to squeeze-out and the framework to control this risk. While squeeze-out may induce socially desirable transactions, it might be misused by controlling shareholders who have more inside informations and act opportunistically: an inefficient capital market could not prevent incumbent controlling shareholders from getting benefitted from squeeze-out when the stock price is underestimated In order to address the conflict of interest between majority and minority shareholders in squeeze-out, this paper categorizes the type of squeeze-out and methods of squeeze-out. The type of squeeze-out includes (i) where the incumbent control continues and (ii) where the incumbent control changes; the methods of squeeze-out includes (a) U.S. style cash-out merger, (b) german style buy-out and (c) U.K. style compulsory acquisition. The paper shows that the risk of misusing squeeze-out is relatively low where the incumbent control changes in executing squeeze-out. Also, the U.K. style compulsory acquisition has merits in terms of protecting minority shareholders from majority in squeeze-out. Combined altogether, the possibility of misusing squeeze-out scheme increases where the incumbent, without control change, executes cash-out merger or german style buy-out. Unlike the current proposal, the U.K. style compulsory acquisition might be a better option for squeeze-out in Korea. If the Korea is to adopt only cash-out merger and buy-out by dominant shareholders, more procedural control should be put on where incumbent control continues throughout the squeeze-out transaction.
참고문헌 (28)
- 김건식, "미국회사법상 반대주주의 주식매수청구권", 법학, 34(93) (1993)
- 김건식, "21세기 회사법 개정의 논리" (2006), 서울대학교 금융법센터
- 노혁준, "합병으로 인한 주식매수청구시의 가격결정 in: 민사판례연구 (제30권)" (2008), 박영사
- 송종준, "소수주주 강제축출법제의 국제적 신조류와 그 입법론적 수용가능성", 증권법연구, 6(1) (2005)
- 이철송, "회사법강의" (2007), 박영사
- "상법 일부개정법률안 검토보고?(2007), 국회의안정보시스템", 임중호[URL]
- 江頭憲治郞, "株式會社法" (2006), 有斐閣
- 近藤光男, "最新株式會社法" (2006), 中央經濟社
- 山本眞知子, "新會社法における株主の株式買受請求權 ; 新會社法の基本問題" (2006), 慶應義塾大學出版會株式會社
- Alexander Khutorsky, "Coming in from the Cold: Reforming Shareholders’ Appraisal Rights in Freeze-out Transactions", Colum. Bus. L. Rev. 133 (1997), 133 (1997)
- Barry M. Wertheimer, "The Shareholders’ Appraisal Remedy and How Courts Determine Fair Value", Duke L. J, 47, pp.613~ (1998)
- Benjamin Hermalin, "Buyouts in Large Companies", J. Legal Stud, 25, pp.351~ (1996)
- Brett A. Margolin, "The Economics of Delaware Fair Value", Del. J. Corp. L, 30, pp.413~ (2005)
- David Cohen, "Comment, Valuation in the Context of Share Appraisal", Emory L.J, 34, pp.117~ (1985)
- Elmer J. Schaefer, "The Fallacy of Weighting Asset Value and Earnings Value in the Appraisal of Corporate Stock", S. Cal. L. Rev, 55, pp.1031~ (1982)
- Frank H. Easterbrook, "The Economic Structure of Corporate Law" (1991), Harv. Univ. Press
- Geoffrey Morse, "Charlesworth’s Company Law (7th Edition)" (2005), Sweet & Maxwell
- Guhan Subramanian, "Fixing Freezeouts", Yale L. J, 115, pp.2~ (2005)
- John C. Coates IV, "Fair Value as Avoidable Rule of Corporate Law: Minority Discounts in Conflict Transactions", U. Pa. L. Rev, 147, pp.1251~ (1999)
- Lawrence A. Hamermesh, "The Fair Value of Cornfields in Delaware Appraisal Law", J. Corp. L, 31, pp.119~ (2005)
- Lucian A. Bebchuk, "Adverse Selection and Gains to Controllers in Corporate Freezeouts, Harvard Center for Law, Economics and Business, Discussion Paper No. 248", ~ (1999)
- Richard A. Booth, "Minority Discounts and Control Premiums in Appraisal Proceedings", Bus. Law, 57, pp.127~ (2001)
- Robert B. Thompson, "Exit, Liquidity, and Majority Rule: Appraisal’s Role in Corporate Law", Geo. L.J, 84, pp.1~ (1995)
- Sanford J. Grossman, "Takeover Bids, the Free Rider Problem, and the Theory of the Corporation", Bell J. Econ, 11, pp.42~ (1980)
- Staphen Kenyon-Slade, "Mergers and Takeovers in the U.S. and U.K" (2004), Oxford Univ. Press
- William J. Carney, "Appraising the Nonexistent: the Delaware Courts’ Struggle with Contol Premium", U. Pa. L. Rev, 152, pp.845~ (2003)
- Yakov Amihud, "The Foundations of Freezeout Laws in Takeovers", J. Fin, 59, pp.1325~ (2004)
- Zohar Goshen, "The Value of the Freezeout Option, The Center for Law and Economics Studies in Columbia Law School, Working Paper No. 260", ~ (2003)