상법상 삼각조직재편의 실무적 주요 쟁점

Abstract

Since the triangular merger was introduced through the amendment of the Korean Commercial Coded (“KCC”) in 2011, KCC made available various triangular reorganization system(s) by introducing triangular share exchange and triangular division merger in its amendment in 2015. The triangular reorganization system is a system which vitalizes the M&A through flexibilization of methods of providing consideration by allowing the provision of the parent company’s share in consideration of the triangular reorganization instead of the share of the merging company or the share of the company whose shares are subject to being exchanged. The inherent risk of dilution of the shareholder’s share/stake or adverse M&A is not high. It is because the acquisition of the parent company’s share which is required in order to provide as consideration for the triangular reorganization may be maneuvered by acquiring a different shareholder’s share of the parent company or forming a transaction structure so that the dilution of shares may not become an issue. In relation to different methods of acquiring parent company’s shares which shall be provided to the target company’s shareholders in a triangular reorganization system, methods such as loan from the parent company’s funds, acquiring the parent company’s shares at a nominal price, and investment in kind are being considered. In each respective cases, however, it is expected that utilizing the parent company’s treasury stocks shall be the most cases. However, more incidents needs to be accumulated prior to relevant operational practice becomes formed. In order to increase the effectiveness of the triangular reorganization system, special provisions in tax treatment such as deferral of tax is necessary. With regards to the triangular merger, there already exists regulations related to the eligible triangular merger in relevant tax laws, but since there are no specific relevant regulations related to triangular share exchange and/or triangular division merger, it seems that relevant modifications to the tax law seems necessary. Triangular reorganization system is a legal system which is necessary for acquiring a foreign company and/or reorganization of domestic industrial structure pursuant to the KCC. As revealed in the triangular reorganization instances in Japan and/or United States, triangular reorganization system is a system which may be used very effectively in the above instances.