삼성물산 합병의 교훈: 합병계획 공개의무 ― 주주의 비례적 이익, Basic·Weinberger와의 비교를 통하여 ―

Abstract

The existing statutory merger ratio system in the merger between affiliates is a method of establishing the merger ratio in an anticlimatic or postmortem manner, And it is unreasonable not to disclose the merger plan in advance. This is because there is a substance that blocks the common stockholders’ right of defense and enables the controlling shareholder to do insider trading by providing information superiority to the controlling shareholder. Such an obligation to disclose the merger plan differs greatly depending on whether to take corporate profit - account standard or shareholder profit inclusion criteria. Under the corporate profit-account standard, the obligation to disclose the merger plan can not be deduced from interpretation theory in terms of the duty of care and insider trading avoidance. Therefore, it is difficult to see that the corporate is obligated to disclose or to publically announce the merger plan. On the other hand, according to the shareholder profit inclusion criteria, it is necessary to resolve the conflict of interests among shareholders and to prohibit the use of unlisted important information by the insider , because it is included in the duty of care. Therefore, It is possible to derive the duty of disclosure of the merger plan. Since the current practice is the perspective of corporate profit-account standards, it is necessary to introduce the obligation to disclose the merger plan (including the merger ratio calculation period) at least in the case of merger between affiliates, Furthermore, it is necessary to switch to profit inclusion criteria.