M&A에 대한 상법상의 규제와 몇 가지 문제점- 합병, 분할, 주식의 포괄적 교환을 중심으로 -

In 2011, the Ministry of Justice amended the Korean corporate law portion of the Korean Commercial Act in order to strengthen the competitiveness of Korean companies in international markets by establishing effective forms of corporate governance and market-oriented discipline. Among the amended provisions two important institutional devices in relation to the merger are newly introduced. One is the cash-out merger which the subparagraph of Article 523 of the Korean Commercial Act set forth the cash amount or property which is to be paid by the surviving corporation to the shareholders of the merged corporation, the other is the triangular merger which the Article 523-2 authorize the use of shares of parent's shares as consideration for mergers. Now the cash-out merger and the triangular merger are became the means of corporate reorganization. After the enforcement of the amended law one case was reported as a the triangular merger. Nevertheless there are many legal obstacle including corporate law, capital market law, competition law, labor law and tax law in order to reorganize the corporation. Recently Korea Government has released its legislative plan for introducing the reverse triangular merger to revitalize the national economy in the small sized corporations and the venture business corporations. The reverse triangular merger is not permitted under the current Korean Commercial Act because of that the merger subsidiary is prohibited to acquire the parent's share for exchange between the parent's and the target's shares. This paper reviews some legal issues about the merger, division, and share exchange of corporations related to M&A in the amended Korean Commercial Act, 2011 including the interpretation of the correspond article and the suggestion of amendment of the law.