미국 소수주주축출 제도의 最近 動向에 관한 硏究 : 거래 형태에 따른 相異한 사법 심사 기준의 발달을 중심으로

By enacting new provisions at KCL §§ 360 et seq and amending the provisons at section 523(4), Korea has officially introduced the so-called freezeout rules. These new rules will be effective on April 15, 2012. This paper attempts to examine the experiences regarding such freezeout rules in the U.S.A., so that Korean practitioners can use in future operation of these new rules. First, it will discuss the origins of freezeout practice from the early 20th century to the present time, and examines the main techniques used to carry out freezeout by majority shareholders. Specifically, it focuses on two main techniques - Cash-out Merger and Tender Offer followed by short-form merger. Then, it proceeds to discuss the standards of review for each type. It notes that typical cash-out mergers have been subject to the entire fairness standard, a demanding judical standard for controlling shareholders. Then, it reviews the standard for the second technique - Tender Offer followed by short-form merger, which has been popular since 2001 after the Siliconix case. Then, it notes that similar transactions have been subject to two different review standards, and reviews a recent Chancery Court case, the CNX Gas case, which attempts to articulate a unified standard. In conclusion, it is a global trend now to allow freezeout transactions, and Korea has done the right thing to introduce new rules. In implementing these new rules, Korea should consider a standard that is similar to the one used by the Delaware courts in Tender Offer followed by short-form merger transactions.