한국의 M&A법제와 외국계펀드규제에 대한 일고찰

Of course, domestic inflow of foreign capital after IMF was helpful not only to a diversification, a rule structural improvement, etc. of the national corporation but also to expand the demand base of stock markets and to contribute to financing of a company. However in the case of speculative foreign capital, employment structure and the secular growth nature of a national corporation are weakened in part by the impossible structural adjustment and impossible high dividend for short-term-investment profits maximization, onerous capital reduction, etc. Moreover speculative foreign capital are generated various problems such as hostile M&A. In the case of our country the defense means against hostile M&A is very inferior relatively compared with foreign legislation. It is not an overstatement although there is no defense method which the corporate management can choose against hostile M&A substantially. Therefore, it is necessary to consult foreign country’s M&A legislation and to legislate the defense method. Preparation of the rational system which can defend hostile M&A by a foreign speculative capital at least is required. Moreover, the system which can impose a tax rationally to the capital recovery using the so-called paper company of speculative capital must also be prepared. When legislating compared with examining investment of a foreigner by Exon Florio Act(U.S.), by Fair Trading Act(Britain) and by Foreign Exchange Carrying on Trade Act(Japan) etc., it is thought that the rationality is accepted. However, since withering of an investment by foreign investors is obstructed, it is necessary to limit the regulation on hostile M&A to an national infrastructure. Moreover like understanding through recently legislation of Japan, the general reexamination to an M&A rule is required. It is necessary to prepare an reasonable M&A rule for a purchaser and a seller can use respectively. The system where the main contents concerning M&A are disclosed by the general investor needs to be prepared. Takeover bid regulation, an extensive possession report system, and a problem like an timely disclosure must be revised for protection of the minority shareholders and a general investors of an M&A target company.