포이즌필의 導入에 따른 法政策的 爭點

Abstract

The rights plans, or conventionally poison pills, have been widely and successfully used in the U.S. corporate control market, and now Korean business circle is strongly arguing for the implantation of the pills. This paper analyzed several dimensions of this argument. First of all, there is no urgent need for such implantation. Unlike the U.S. or England, where companies are dispersedly owned and thus management is separated from the owners, Korean companies, including chaebol firms in particular, are owned by controlling shareholders. Several advantages that the defenses against hostile takeovers can achieve, such as enhancing the target company's bargaining power, overcoming managerial myopia, encouraging firm-specific investment, and so forth, are less likely under the controlling shareholder ownership. Given the lack of adequate monitoring system over the controlling shareholders, arguably, they are likely to abuse the pills to get rid of the threat from outside, with increasing private benefits. If, however, granting more defensive measures are socially agreed, poison pill would be regarded as one of the most efficient defenses, in terms of minimizing social costs associated with defensive tactics. Among several costs, this paper highlights the effect of defensive tactics to distort the other corporate decisions, and in this regard poison pill seems to be socially desirable. It should be noted, however, that the specific features of poison pill be designed to be harmonized with current Korean corporate law, most notably with the doctrine of equal treatment of shareholders. Interestingly, recent Japanese supreme court held that companies are not obliged to treat acquiror company equally with other shareholders, if the acquiror is higly likely to hurt corporate value by busting-up the company. Although it is not clear whether we have to abandon such legal doctrine, it seems that more close examination should be carried out.