적대적 M&A에 대한 이사의 방어행위 기준

Abstract

In Korea, the hostile M&A gradually increases in number. It has disciplinary effects by which the managerial efficiency is improved while it forces corporate directors to commit themselves to short-term achievement and makes the wealth of shareholders in the acquiring or target corporation reduced or transferred. Among some kinds of organs in a corporation, it is directors that can protect the interests of shareholders. Thus, directors have the authority to defend their corporation against hostile M&A's. However, defenses undertaken by directors may be in conflict with the wealth of shareholders. This is the reason why criteria for defenses of directors against hostile M&A's should be established. In U.S.A., courts have developed several sorts of tests which include the primary purpose test, the proportionality test, the value maximization test, and the intermediate standard. The primary purpose test has been widely adopted in Japan. In Korea, academic opinions have been divided as to what standards should be used in estimating directors' defenses against hostile M&A's. Korean courts have adopted a test which is similar to the primary purpose test. However, the Study argues that different tests should be applied to different settings.