상장회사의 공개매수와 방어전략에 관한 고찰

In 2007 the Supreme Court of Japan rendered a decision dealing with a defensive tactic in relation to tender offer. That decision viewed a discriminatory rights plan valid in the light of the threat posed by the tender offeror. It resulted in controversial debates on the limits of permissible defenses. In general it is said that a corporate management can put the defensive tactics as far as they are reasonable and proportionate to the threat. Further it would be the director’s obligations to defeat a takeover attempt harmful to the corporation or the whole shareholders. However it is not easy task to draw a line between permissible and impermissible tactics. The Courts decide on a case by case basis, which necessarily makes the decision on another case unpredictable. Above Japanese case was involving discriminatory treatment of the tender offeror, which apparently violated the principle of the equal treatment of shareholders. However it was upheld by the Supreme Court. This thesis first summarizes the regulatory scheme of tender offer under the new Financial Market Act with comparison to those of United States and Japan, then analyzes above Japanese case with comparison to the U.S. Courts’ decision and with general discussion. It also highlights the problems with some suggestions.