주식병합을 통한 소수주주축출 문제 해결 방안

Abstract

A reverse stock splits permit a recapitalization, merger and acquisition or company split under the Korean Commercial Law. But recently, controlling shareholders use to squeeze out a minority shareholders by means of reverse stock splits. A reverse stock split provides an attractive method for eliminating the minority shareholders of a closely held or public corporation. Korean Commercial Law provide an appraisal remedy to shareholders squeezed out by merger or company split, but none expressly authorizes appraisal in the event of a reverse stock split. Futhermore, fair valuation of close corporation stock is extremely difficult because of the absence of a ready market for close corporation shares. Minority shareholders in close corporations, therefore, must rely on the judiciary to protect their interests from majority oppression. In America, courts have held that controlling shareholders, like directors, owe a fiduciary duty to the minority. Typically, Courts have adopted three test in acquiring exclusive control by means of a reverse stock split. First, courts require that the majority have a valid business purpose for squeeze-outs. Second, the transaction must be free of any taint of fraud, misrepresentation or non disclosure. Third, the minority shareholders must be paid fair price for their stock. In Japan Company Law, when a corporation intends to consolidate its shares, it require a resolution at a shareholders meeting, the ration of the consolidation, notice to shareholders, demand to cease reverse stock split and dissenting shareholders appraisal rights. A corporation can use merger or company split by way of a reverse stock split to remove minority shareholders, but it is problem to use recapitalization by way of a reverse stock split, because such a technique may harm the interests of minority shareholders. Thus, courts should consider such factors - a abuse of rights, in good faith or equality of shareholders – in establishing an appropriate standard test to protect minority shareholders.