지배권 프리미엄의 공유 문제와 의무공개매수제도

Abstract

The sharing issue of corporate control premium between majority and minority shareholders in transactions of corporate control by selling the controlling shares or wide spread shares has long been discussed in the foreign countries since 1950’s in the US. These days tender offer has been generally recognized and implemented as one of the legal means for its solutions of the issue. Tender offer has been mandatorily enforced in buying controlling shares from many and unspecified shareholders in most of countries as well as Korea. In Europe and Japan, the control premium must be shared among the tendering shareholders by giving an equal opportunity for the target's shareholders to sell the shares in case of acquiring more than 30% or one-thirds of target's all of outstanding shares even from one shareholder or a significantly few certain shareholders . But, in the US, control premium is attributed only to the selling shareholder(s) based on the no-sharing rule except for some circumstances in which the sale is presumed to be breached against the fiduciary duty of controlling shareholder, as in sale of office, sale of looters and usurpation of corporate opportunity. In short, control premium has to be shared among all of shareholders in all or particular types of control shift in international regulatory systems. Meanwhile, in Korea, the control premium is attributed only to the seller shareholder(s), even in the case where the control transaction has possibilities to cause damages to the company itself or minority shareholders. It means that there remains an imbalance in legal treatment with the above two ways of control transactions under the Korean legal circumstances. Moreover, Korean academic and legal circles have not been seriously interested in that problem. It is a newly proposed issue to find out the reasonable solution for balancing the conflicts of interests arising in the face of all of the control transactions. In this paper, so-called one-thirds rule, similar to the current Japanese system, is suggested as a possibly promising solution. Under the rule, tender offer is mandatorily forced while share-interest would be exceeded over one-thirds of all of the outstanding shares of the target company just after acquiring the shares from not more than 10 shareholders within 6 months out of the exchange market. It is positively expected that the rule, compared to the European mandatory bids, could significantly mitigate speculativeness of partial bids, reduce the concentration of corporate share ownership and excessive costs of control acquisition to the considerable extent, and also vitalize the corporate merger and acquisition transactions. Ultimately, the rule is expected to function to adjust and balance the conflicts of interests between the controlling and minority shareholders by giving an equal opportunity to sell the shares to all of the shareholders in the corporate control transactions.