소수주주축출제도의 도입방안에 대한 검토

The amendment draft of Korean Commercial Code of 2008 introduced the squeeze-out of minority shareholders. When it is efficient that dominant stockholders single-handed manage the company without minority shareholders, elimination of minority shareholders needs to be admitted on the assumption of possibly fair trading. However, the squeeze-out system has the conflict of interests between controlling shareholders and minorities. The amendment draft regulates the cash-out mergers and the compulsory buy-out. Yet, the detailed substances of them are likely to be discussed. It is doubted that the management goal should be a requirement for the compulsory buy-out of dominating shareholders. I think it is more efficient that a target company should be an listed company and the tender offer should be conformed to in the way of squeeze-out. As the core of squeeze-out is fair pricing, we should review the squeeze-out in the same context of pricing in an appraisal of dissenter's shares. Pricing the shares, We have difficulties estimating unlisted companies while we can make it easier to evaluate the listed companies. For the cash-out merger, the fairness about the ratio of merger should be examined. The US standard of entire fairness could be adopted as the criteria of the ratio of merger. To accept the squeeze-out of minority shareholders, the fiduciary duty of controlling shareholders to minority shareholders and the criteria of entire fairness to judge major shareholders to abide by the fiduciary duty should be introduced. Hereafter cases will make the standards for judging the fiduciary duty and The US standard of entire fairness could be a guidance.