신주인수선택권에 관한 상법개정안의 검토

Abstract

The poison pill has the problem of 'agency costs'. The poison pill is open to abuse because it is an effective entrenchment tool. Nonetheless, the poison pill is an important tool for raising shareholder value. Thus finding ways to curb the abuse of the poison pill is of critical importance. Some member of the National Assembly submitted to the National Assembly three bills to amend the Commercial Act, to allow companies to issue call options for new shares as an anti-takeover measure(hereinafter 'Korean poison pill'). But the question arises as to whether or not bills have enough ways to curb the abuse of Korean poison pill. First, according to the above bills, it is unclear under which circumstances shareholder can exercise Korean poison pill, and the company can cancel it, and who will decide about the exercise or the cancellation of it. There would be a need to consider the way to introduce the detailed regulation of Korean poison pill like Japan. When the board of directors votes to grant Korean poison pill, the board also votes the detailed regulation of Korean poison pill and releases it. By providing specific conditions of the exercise and the cancellation, and the decision maker in the detailed regulation of Korean poison pill, the manager's abuse of the poison pill can be curbed and specific conditions of the exercise and the cancellation, and the decision maker can be made public clearly in advance. Second, when it comes to the bills' phrase of 'the value of the company', the question arises as to whether or not the board can consider the interests of nonshareholder constituencies deciding to grant Korean poison pill. If the board is allowed to consider the interests of nonshareholder constituencies when it decides whether to grant Korean poison pill, then the problem of ambiguity will arise as to whose interests the board will consider, which interests the board will consider, and how much interests the board will consider. There will be a possibility that considering the interests of nonshareholder constituencies can be used as an excuse by the manager for abusing Korean poison pill to protect his tenure. Thus it would be desirable the board is allowed to consider only the interests of shareholders when it decides whether to grant Korean poison pill. Third, ① the bills' requirement of 'the case when it is necessary to maintain or increase the value of the company and the interests of its shareholders in general', which is the standard for judicial review, is abstract, so the question arises as to how the court will decide whether the requirement is being met. ② The above requirement is not sufficient, so the way how to curb the abuse of Korean poison pill matters. To secure the effectiveness of the standard for judicial review, that is 'the case when it is necessary to maintain or increase the value of the company and the interests of its shareholders in general', there would be a need to consider the specific judgement method such as requiring the board to prove that the company's going concern value is higher than the pending bid price. The bills prescribe only the requirement of 'the case when it is necessary to maintain or increase the value of the company and the interests of its shareholders in general', and they don't prescribe the requirement that the Korean poison pill is reasonable in relation to the threat posed(hereinafter 'the reasonableness requirement'). But the Commercial Act is required to prescribe the same reasonableness requirement as that of the US and Japan to curb the abuse of Korean poison pill. Thus there would be a need to consider the way to prescribe the reasonableness requirement in the bills.