국제적인 합병 체제를 위한 고찰:SEVIC Systems AG사건 이후 유럽연합 사법재판소(ECJ) 판결 분석
A Study on the Cross-Border Merger System: Analysis of European Court of Justice’s Decisions Inspired by SEVIC Systems AG
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According to corporate law texts, a merger by acquisition is carried out by a merging company when the surviving company (either the resulting or pre-existing one), receives all assets and liabilities from the disappearing company without the latter company’s dissolution, in accordance with required procedures. A cross-border merger would take place across national boundaries. Currently, there is a dearth of discussion of cross-border mergers. It is the common view that cross-border mergers involving a Korean company are not permitted based on the Korean Commercial Code and its corporate law provisions, and that mergers only can be implemented between Korean companies under Korean law. However, if any cross-border merger or international merger could occur directly, it would not be necessary to consider complicated deal structures in corporate restructuring for purposes of merging other foreign companies based overseas. This paper examines recent trends in court cases from the Court of Justice of the European Union (ECJ) – i.e., the Centros, Überseering, Inspire Art, Daily Mail and General Trust, Cadbury Schweppes, Cartesio, and Vale cases – which have influenced or been inspired by the SEVIC Systems AG case in 2005, after enactment of the EU Cross-border Mergers Directive (Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies, simply referred as the 'Merger Directive'). In addition, an overview of EU cross-border mergers is provided. Although the Korean legal framework may differ from those of the EU, these cases could serve as informative references for discussing cross-border merger issues in future, for exploring the feasibility or possibility of cross-border mergers, and how such mergers would have to be formulated in the future.
Abstract
According to corporate law texts, a merger by acquisition is carried out by a merging company when the surviving company (either the resulting or pre-existing one), receives all assets and liabilities from the disappearing company without the latter company’s dissolution, in accordance with required procedures. A cross-border merger would take place across national boundaries. Currently, there is a dearth of discussion of cross-border mergers. It is the common view that cross-border mergers involving a Korean company are not permitted based on the Korean Commercial Code and its corporate law provisions, and that mergers only can be implemented between Korean companies under Korean law. However, if any cross-border merger or international merger could occur directly, it would not be necessary to consider complicated deal structures in corporate restructuring for purposes of merging other foreign companies based overseas. This paper examines recent trends in court cases from the Court of Justice of the European Union (ECJ) – i.e., the Centros, Überseering, Inspire Art, Daily Mail and General Trust, Cadbury Schweppes, Cartesio, and Vale cases – which have influenced or been inspired by the SEVIC Systems AG case in 2005, after enactment of the EU Cross-border Mergers Directive (Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies, simply referred as the 'Merger Directive'). In addition, an overview of EU cross-border mergers is provided. Although the Korean legal framework may differ from those of the EU, these cases could serve as informative references for discussing cross-border merger issues in future, for exploring the feasibility or possibility of cross-border mergers, and how such mergers would have to be formulated in the future.
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