상법 개정안상 포이즌 필의 검토

The Ministry of Justice pronounced the revision of the Commercial Code introducing the stock purchase right to be used the Poison pill. Poison pill is most practical and typical method to protect target from the hostile take overs in America and Japan. They are adopted to protect minority shareholders from inadequate takeovers and to increase the power of a company's board of directors to negotiate with potential acquirers. From the draft, the corporations can induce the poison pill, but it is restrictive when compared to the USA or Japan. First, the stock purchase right can be adopted only by the amendment of the articles of the corporations. When articles permit the issuing the right,The board of directors can make material conditions, like triggering event,issuance, transfer, redemption, cancellation of the right etc. In deciding the condition, it requires the approval of the more than two thirds of the board of the directors. There are some opposition to that the poison pill can only adopted by the amendment of the articles. They doubt the practical possibility of the poison pill. But, in implementing the plan, the board of directors will lead the process. In order to guarantee reasonableness of plan, it should be passed the decision at the shareholder meeting. Poison pill plan will involve two major issues (1) whether the poison pill plan unlawfully discriminates against the acquirer. The corporation can restrict the bidder’s right of stock purchase and it can also except the bidders when redeeming the right, So it make issue of whether it breach the principle of equal treatment between the shareholder. (2) whether the implementation and the redemption of the plan constitutes a breach of fiduciary duty by the company’s board of directors. Generally the board has the ability to issue and redeem the rights, in order to prevent the abuse of discretion like to keep the seat, we need to arrange the standard for the duty of care in deciding whether to issue or redeem the rights. The board should issue or redeem the poison pill only in accordance with the principles of maintaining and increasing the corporate value and general shareholder’s interests. In this paper, I suggested several amendments of Code for the poison pill. Between them, I suggested that the right should be separated from the share after the starting date of exercising the right. For that, the bills of the right should be issued. The corporate can redeem the right by the cash only to the bidders when it discriminate them between the shareholders.