기업인수목적회사(SPAC)에 관한 법적 쟁점

Abstract

This article investigates the relevance of the SPAC (Special Purpose Acquisition Company) system, which was introduced from the U.S. recently and has been subsequently adapted in Korea. Basically SPAC is a corporation subject to the Commercial Law which provides, as a higher law,pertinent issues such as foundation, issue of stocks, organization, and merger, and other issues that are not provided by the higher Commercial Law, such as investor protection, listing, and disclosure, are stipulated by other lower laws. This paper surveys what makes these SPAC regulations provided by lower laws not comply well to the higher Commercial Law. SPAC can be defined as a special purpose investment company founded by investors funding for merging with another corporation to realize profit arising from the increase in value of the target corporation. This inherent uniqueness of SPAC presents the question of how the Commercial Law principles should be modified to establish the SPAC system apart from the common commercial corporation system, which is discussed on several legalistic aspects:1. Should a SPAC be a public limited company? Investors of a SPAC participate as shareholders in decision making and in realizing their investment goal through dividends, and this can justify the qualification of a SPAC to be a corporation. Also it could be argued that a SPAC should be a limited company if its capital be wholly invested to merge with other company, for acquisition can take place only between two companies. 2. Should a SPAC be addressed as a paper company? The term paper company has come to be used to call SPACs in the U.S. and Korea, but it sounds to undermine the reputation of the company making it unlikely to disregard an effect of external diseconomy. 3. Should the dominant founder of a SPAC called sponsor? According to SPAC vocabulary the founder, usually a security company under current Korean regulations, is called sponsor, but this appellation is nowhere found in any regulations of the Commercial Law or other laws associated with SPAC. Thus it is appropriate to call the dominant founder as founder, or chief founder. 4. Should the foundership be confined to a security company? This could not be justified despite arguments given by regulation authorities that the eligibility restriction will help the SPAC system settle in Korea and will help safe management of reputation risk. 5. Should the security company as founder of the SPAC be the sole underwriter of its initial public offering (IPO)? This is deemed to be an unreasonable regulatory measure; there is no regulation of this sort in the U.S., where large investment banks, such as Deutsche Bank or Citigroup,can act as a lead underwriter. 6. Should a SPAC be founded by means of founding only? It should also be allowed to be founded through offering, in which case it will proceed private. 7. Should a SPAC be allowed to issue so-called warrant? As it is allowed for a SPAC to issue warrant in the U.S. legal system where the SPAC corporate bond is not coupled with the SPAC itself, in the Korean Commercial Law it is allowed for a corporation to issue new stock sheet which is similar to warrant, and it is considered to be possible to issue warrant under the current Commercial Law. 8. Should the investment in the SPAC system be through merging only? It would be in harmony with the policy of minimization of regulations if other measures should also be allowed, including divestiture, acquisition, capital stock exchange, and other similar business combinations. 9. Should a Korean firm be allowed to draw investment through merger pursued by a foreign SPAC? It would reduce to a matter of whether such a merger poses any registry obstacle, and it should be overcome through applying current laws as positively as possible. 10. SPAC merger should be carried out by either means of statutory or consolidation. 11. It seems to be difficult in the SPAC system to accommodate a merger that is of short-form or small-scale. 12. The number of target companies in a SPAC merger could be two and over. 13. It seems to be impermissible to merge with only part of the target company. 14. SPAC merger cannot be free of limited competition, and it is under the category of merger to be simple-checked in business combination requirements of the Notice of the Korea Fair Trade Commission. 15. It has not been long since the SPAC system was introduced into Korea on Dec. 21, 2009, and it will not be until the above-mentioned legal issues are cleared that the SPAC system will settle in as a means of alternative investment.