우회상장 규제의 현황 및 개선 검토

Abstract

Backdoor listing refers to gaining a listing on a securities exchange by an unlisted company not through the regular procedures of listing but through acquisition, merger or stock swaps with a listed company. The backdoor listing has provided positive effects of M&As by assisting companies to spare time and expenses incurred in listing procedures, utilize capital and business knowhow of the listed company and get an easier access to exchange market to raise the capital. Aside from its advantages, however, the backdoor listing has also showed negative aspects such as escape from strict listing requirements and abusive use by companies with low performances. Especially since 2005, the craze for so-called “thematic issues” including those of bio-technology and entertainment industries has often led to social ills as corporate raiders of unlisted companies of such industries took huge profits from merger and stock swaps with listed companies then left it bankrupt. To address such problems, regulations on the backdoor listing have been strengthened to expand the coverage of regulation to various forms of backdoor listing such as stock swap, business swap and stock for stock, compared to the former regulation that was only focused on M&A which was a typical type of backdoor listing. This study first attempts to help understanding of basic concept and recent trend of backdoor listing, compare the main points and differences between the statutory regulation on M&A by the government authorities and regulation on backdoor listing by the Exchange and then help readers understand the principles and the stance of the regulatory system on backdoor listing by enlightening the history of relevant laws and regulations including the Capital Market and Financial Investment Services Act(former “Securities Exchange Act”), the relevant rules of the Financial Services Commission(former “Financial Supervisory Commission”) and the listing rules of the Korea Exchange(former “Korea Stock Exchange”). Then, after taking a close look at the regulatory system and the current situations of backdoor listing in the United States and Japan, this study examines current regulatory problems such as the lack of clarity in main agent of regulation and inadequate regulation on insider trading entailed in backdoor listing and then suggests several measures for improvement. In order to address the unclarity of main agent in regulation on backdoor listing, this article first suggests making clear that the basis of regulation on backdoor listing is the listing regulations of the Exchange, not the exceptional clauses for M&A between listed companies and unlisted companies on the Capital Market and Financial Investment Services Act. Also, it is necessary to eliminate duplicative regulation by deleting provisions that can be interpreted as violation of the regulation of the Exchange on backdoor listing is subject to administrative sanction. Furthermore, it is suggested that authoritative interpretations by the government agency such as the Financial Services Commission or legislative improvement should be made to make it clear that insiders of unlisted companies are also subject to the relevant regulations to insider trading. In order for backdoor listing to settle down in Korea as an advanced means of M&A compatible with the global standards, coordinated efforts by the government, the Exchange and market participants should be made to reinforce the regulations on its negative aspects and to strengthen its positive aspects at the same time such as reclamation of venture capital, corporate restructuring and capital raising by developing sound mechanism including SPAC, for example.