주주축출의 정당성과 그 한계

Abstract

It is an established principle that corporate shareholders can participate in the management of the company by exercising voting rights in proportion to the number of shares owned, and as co-owners and investors of the company, they can receive profit dividends or distribution of residual assets from the company according to the same principle. The protection of Shareholders’ rights regarding dominant interests and property interests is an essential requirement of the Company Law that must be taken into consideration when a corporation issues shares or carries out the reorganization of company. In response to changes in the economic environment, the Company Law has introduced the cash-out merger and the acquisition of all the shares of minority shareholders, etc. to change or reorganize a corporate mechanism or business. These statutes aim to advance the efficient and flexible operation of the company. At this time, the basic principle is to maintain the status of shareholders or their investment opportunities. But in the interest of advancing the efficient and flexible operation of the company, cash-out merger, etc. should be permitted in spite of the opposition of minorities. At this time, it is necessary to protect minority shareholders who will lose, in effect, their shareholder status against their will. As one of the methods, it is examined whether the company's business purposes is necessary to eliminate the minority shareholders. While introducing the acquisition of all minority shares, the Company Law strictly establishes the qualifications of controlling shareholder and requires the legitimate business purpose as an affirmative requirement. But it does not set this in the case of a freeze-out merger. As a result, it is questionable whether the mere fact that the merger ratio is fair and that the opposite shareholders are given the appraisal right justifies the squeeze-out of minority shareholders and provides a enough protection for minority shareholders. In this paper, first I will describes the squeeze-out statutes in the Company Law. I will examine the function and meaning of legitimate business purpose according to whether it is stated as a requirement or not. Based on this, I will explain whether minority shareholders can be protected by invalidating a transaction for the squeeze-out of shareholders that has no valid business purpose or violates the equality of shareholders. Finally I will provide the conclusion about the limits of shareholder squeeze-out and the methods of protection of minority shareholders.