‘합병비율 불공정’과 구제수단―비판과 대안: ‘불공정’의 재정의(再定義)와 신주의 추가발행―

Abstract

In this paper, the author examines the calculation method and meaning of the merger ratio and the relationship between the merger ratio and shareholders’ conflicts of interests, and goes on to assert that the merger ratio is a transaction price and that simple unbalance should not be a problem. When it is said that the merger ratio is ‘unfair’, the concept of unfairness should be divided into whether it is a simple unbalance of the price or a legal unfairness attached to the ‘additional legal element’, and the remedy should be divided into two cases. It is necessary to take more careful consideration of the effects of the merger ratio, clear recognition of the concept of unfairness, and the influence of the corporation profit independence doctrine. Since the appraisal right is governed by the Non-Litigation Procedures Law, it can not be viewed as a corrective measure. Its wealth adjustment is also unreasonable. Article 399 or 401 of the Commercial Act has the problem of incompatibility with the damage calculation principle under the Civil Law, and incompatibility with the corporate profit independence doctrine. Those are unrealistic remedies for unfair merger ratio that are hardly taken ever. There is a logical flaw in why the merger should be void due to the unfair merger ratio. There is almost no possibility of ‘nullifying verdict’ being rendered due to uncertainties arising from the inconsistency with the corporate profit independence doctrine and uncertainties in the meaning of ‘significant’. The above mentioned all means are almost ineffective as remedies for the ‘unfair merger ratio’. In order to solve the above problems, it is essential to change the corporate profit independence doctrine to shareholder profit standard, and it is worth considering issuing new shares as a remedy. Issuing new shares is the most accurate way to correct the result of unfair merger ratio. Under the shareholder profit standard, the act of unfairly setting the merger ratio for the benefit of the controlling shareholder can be subject to the relative nullity rule as an act of abuse of representation right or self-dealing. In such case, the scope of invalidation is applied only to the merger ratio agreement, for which issuing new shares is the most proper and accurate way of adjusting. However, since this method is based on the shareholder profit standard, it can not be accepted under the corporate profit independence doctrine. Therefore, it may be necessary to introduce it by legislation rather than interpretation.