소수주식 전부취득제의 입법의도와 해석방향

A compulsory acquisition of minority shares in the revised Commercial Act was though different in part, substantially modeled after that of the German Stock Corporation Act, in which controlling shareholder is conferred a right of buy-out or a right of squeeze-out, and minority shareholders are given a right of sell-out. It was implemented for the flexible and efficient corporate restructuring in both listed and non-listed companies, but there are some requirements to prevent the abuse of freezing-out minority shareholders for exercising the right as follows. A controlling shareholder should have already owned more than 95% of all of the existing shares before exercising the right and should show that it is exercised only for the proper business purposes of the company. And he or she should disclose material informations to the minority shareholders, explain his or her compulsory acquisition plan according to the relating provisions and get an approval in the ordinary shareholders general meeting. Nevertheless, there are some concerns that some of the above mentioned requirements are vague and ambiguous in a legal meaning and there might be abused against the legislative intents in practically applying the provisions of compulsory acquisition. This paper is analysing the legal requirements on the basis of legislative intent discussed and considered in the process of legislature, in which the published domestic references and foreign legislative materials such as the 2001 German stock corporation Act and 2006 English Companies Act as well as American case law including some state statutes have been comparatively reviewed. In conclusion, this paper stresses that the entire fair price should be necessarily paid to the frozen-out minority shareholders in the point of constitutional legitimacy of the compulsory acquisition.