한국 M&A의 특성과 그 법적 시사점에 관한 試論

In Korea, there have been increasing number of M&A transactions since early 2000s, and correspondingly, increasing number of academic works by legal scholars on M&A. However, these research products, which are under heavy influence of US case laws and legal theories, fail to keenly recognize certain distinctive features of the M&A practices in Korea. Distinctive features of Korean M&As include, in terms of the form and substance of transaction, the following: (i) there are few hostile M&As as opposed to plenty of friendly M&As, (ii) most transactions are accomplished by way of sale of controlling block of shares outside the stock exchange, with very few merger or tender-offer cases resulting in control shift, (iii) most transactions entail quite high amount of control premium, and (iv) preliminary agreements (e.g., MOU) with successful bidders tend to be drafted to be legally binding, resulting in frequent disputes at the pre-signing stage. Also, (i) many transactions are proceeded with in accordance with "official proceedings" focusing on transparency and due process, (ii) role of the board of directors and general shareholders of the target company is very limited since most of the M&As are done in the manner of block sale, and (iii) in case where the employees are well organized, they play considerable roles in the whole M&A process. These features stem from the fact that most of Korean companies, even the listed companies, have controlling shareholder(s). The seller wishes to receive substantial control premium by selling the entire controlling block, and the buyer is willing to pay such premium to acquire the controlling block in its entirety. Because the seller does not want to share the control premium with other shareholders and the law does not require the buyer to buy shares from other shareholders, tender offer or merger is hardly used in Korean for a control transaction. Also, existence of high control premium makes the sale to the general public through stock exchange a non-appealing option for the potential seller of large block of shares. From a comparative perspective, sale of controlling block outside the stock exchange, which precludes the other shareholders from sharing of the control premium, is usually prohibited or limited by way of mandatory bid rule or otherwise. The preponderance of out-of-exchange control transactions in Korea needs serious reconsideration. Going forward, legal practices and theories on M&A in Korea should be developed based on a solid understanding of the current M&A practices and their distinctive features, instead of directly importing those of US and other countries.