2011년 개정 상법상 소수주식 강제매수제도

The 2011 Amendment to the Korean Commercial Code introduced the two new mechanism for compulsory acquisition of dissenting minorities. They are the Controlling Shareholders' Compulsory Acquisition of Minority Shareholders' Stock and the Cash-Out Merger provided in Article 360-24 and Article 523, Item 4 of the Commercial Code. Such mechanisms are modeled after the freezeouts under the American corporation law. A “freezeout” is a transaction in which those in control of a corporation eliminate the equity ownership of the non-controlling shareholders. There are three techniques for carrying out a freezeout under the American corporation law: (1) Cash-out merger; (2) Short-form merger; and (3) Reverse stock split. Since a freezeout transaction will usually involve self-dealing by the controlling shareholders, state courts will closely scrutinize the fairness of the transaction. In most states, the freezeout must meet at least the first, and possibly the second, of the following tests: (1) the transaction must be basically fair, taken in its entirety, to the minority shareholders; and (2) the transaction must be undertaken for some bona fide business purpose. For the transaction to be “basically fair,” most courts require: (1) a fair price; (2) fair procedures by which the board decided to approve the transaction; and (3) adequate disclosure to the minority shareholders about the transaction. The Controlling Shareholders' Compulsory Acquisition of Minority Shareholders' Stock and the Cash-Out Merger adopted by the 2011 Amendment to the Korean Commercial Code will function efficiently only when the Korean courts also apply both the fiduciary duty owed by the controlling shareholders towards the minority shareholders and the entire fairness standards developed by American case laws.