개정상법상 소수주주축출제도에 관한 연구

It is a significant event to the existing basic principle of the corporate law that Korean revised corporate law of 2012 will introduce the new compulsory acquisition or squeeze-out. This system is modeled on the cash-out merger of the United States and the compulsory acquisition of Germany. Such a move requires a policy shift that corresponds to a more modern vision of financial markets in which minority shareholders are protected not by an inalienable right to remain as shareholders, but rather by a right to receive fair value in exchange for their shares. Compulsory acquisition has both the positive aspect and the negative aspect. The former is that senses of loss of minority shareholders expelled against their will could frustrate the minority shareholders’ will to participate in the economic activities through the corporate system. In order to protect the minority shareholders’ expectations, first of all, the fair transaction of compulsory acquisition and the fair price given to minority shareholders should be secured. For this purpose, the entire fairness test of the United States and the European method of procuring the fairness in the compulsory acquisition can be referred to. Essentially in Korean legal system, however, fundamental reexamin- ation about the relationship of the controlling shareholders and the minority shareholders is necessary. For that, the concept of fiduciary duty approved in many advanced countries should be introduced to the Korean corporate law in the near future.