자본시장법상 주식의 공동보유

Abstract

The concept of “acting in concert” was introduced as basic regulatory instrument to supplement the 5% Rule and takeover-bids regulation in 1996, following the Securities Law amendments. Pursuant to an agreement or understanding (whether formal or informal), those act in concert do either actively cooperate or to vote in cooperation at the general meeting of the target company so that they obtain or consolidate control of a company by acquiring its shares. Acting in concert is governed under §142 enforcement ordinance of Korean Capital Market Code. When a tuned reciprocal behavior in relation to the target Company is approved as satisfying the requirements of acting in concert in an appointed case, it may lead to impose a duty to report in accordance with 5% rule and to make a mandatory offer. The concept of acting in concert, however, is so abstract broadly interpreted under the Korea law that it has been criticized for easily recognizing requirements of persons in acting in concert by the financial supervisory authority. Put it simple, acting in concert, in fact, breaches M&A related rules and has great influence on M&A game itself. At the same time, it has a negative impact on shareholders’ general activism which will contribute to development of a sound corporate culture as well as improvement of corporate governance and management transparency. By comparing Korean law and European law, this suggests that the requirement-provisions for acting in concert should be regulated more clearly and precisely by adding the supplementary conditions which restrict the wide scope of the existing regulations.