불공정한 합병비율은 합병무효의 원인인가?

Abstract

Among the various legal issues surrounding the merger of corporations, how to ensure fairness in the merger ratio or merger conditions and how to provide remedies to shareholders who receive or will receive significantly unfair merger compensation are important topics in commercial law. A fair merger ratio is naturally required in light of the nature of the merger and the effects of the merger, so the issue of fairness in the merger ratio is the most essential issue among the merger conditions. Simply looking at the law, it is understood that if a shareholder of a merged corporation suffers property damage because the merger ratio was set unfairly during the merger process, he or she can file a lawsuit to nullify the merger on the grounds of the unfairness of the merger ratio. However, as of 2024, there has been no case in which the Supreme Court ruled a merger nullified on the grounds of an unfair merger ratio. Therefore, it is unclear whether the court will view the unfair merger ratio as a cause of nullification of the merger in an actual case. In a situation where the surviving corporation has already been launched and operated after the merger, it is not efficient to nullify the merger and force a return to the state before the merger just because the merger ratio is unfair. Considering the legal stability of transactions made after a merger, it is necessary to minimize the destructive effect of a merger nullification. To this end, even if the merger was accomplished using a significantly unfair ratio, that ratio should not be treated as a cause for nullifying the merger. However, ignoring the damage to shareholders caused by an unfair merger ratio is also against legal justice. Therefore, in Korea, rather than simply relying on lawsuits to nullify the merger, various ex post remedies have been proposed as solutions, such as compensating shareholders for damages caused by unfair merger ratios or adjusting the merger ratio by issuing additional new shares. However, it is difficult to readily accept this type of remedy as it is difficult to find examples from other countries. Accordingly, this paper proposed the introduction of merger auditors modeled on the German Transformation Act and the European Model Company Act, believing that ex ante regulation rather than ex post remedy would be more efficient in terms of organizational law.