지배주주의 매도청구권 제도 개선방안 - 최근 판례 이론 및 일본 주식매도청구 제도 검토를 중심으로 -

Abstract

The 2011 revised Commercial Act introduced compulsory acquisition of minority shares (Controlling Shareholder's Right of Squeeze Out). After the introduction of the system, in practice, by exercising the Controlling Shareholder's Right of Squeeze Out for the remaining minority shares after the listed company voluntarily delists through a tender offer, or by exercising the Right of squeeze out to the minority shares of the unlisted company, this system is being used for the purpose of thorough subsidiarization or making a one-man corporation. While the Controlling Shareholder's Right of Squeeze Out system is a practically useful system as a Going Private Transaction, there are concerns that the system may be abused to infringe the interests of minority shares by the controlling shareholder. The present study aimed to examine the trends in precedents and theories on the Controlling Shareholder's Right of Squeeze Out system after the system was introduced according to the revision of the Commercial Act and review the areas that necessitate legislative supplementation for the effective operation of the Controlling Shareholder's Right of Squeeze Out system as follows by analyzing the legal principles and precedent trends of the Japanese Corporation Act, which introduced a right of squeeze out system for a special controlling shareholder, a similar system introduced in 2014. A method to promote the promptness of corporate reorganization by clarifying the timing of stock transfer according to the squeezing out of controlling shareholder and making the effect of stock transfer occur collectively at a specific time point was proposed. In terms of controlling shareholder requirements, since the treatment method of the treasury shares held by the object company may act as a critical factor in the decision-making process in practice, it would be desirable to be clarified in the text of the law. It would be also desirable to stipulate that the treasury shares of the object company are excluded from the controlling shareholder's ownership by amending the commercial Act and it is expected that this would be clarified if the commercial law amendment bill that is currently being proposed is passed. In relation to the management objectives required by the Commercial Act, it could be agreed that the management objectives currently presented in the lower court judgments are not effective in terms of protecting minority shares. However, since the purpose of the introduction of the system is to protect minority shares in advance, it would be desirable to discuss legislative improvement measures when precedent theories have been sufficiently accumulated. In relation to the Controlling Shareholder's Right of Squeeze Out system, it is expected that an abundant precedent theory will be further formed.