적대적 M&A 규제의 지배원리와 현행 법제의 재검토

Since 2008 international financial crisis, new attempts to reform the existing regulatory regime on the hostile mergers and acquisitions have been continued especially in the EU and Japan. In the attempts, some problems have been critically reviewed and new legislative recommendations have been suggested in the perspectives of three core principles like as control of transfer of wealth, coercion and unfairness, governing the regulation of the hostile M&A. Meanwhile, regardless of the epoch-making crisis, conventional regime on the tender offer regulation, in which most of the regulations are said to be modeled after the U.S type, has been still maintained even since the crisis without any regulatory changes in Korea. But, hostile M&As for the company reorganization are expected to surprisingly increase in the future Korean corporate control market according to the cash-out merger and compulsory acquisitions by controlling shareholder already introduced in the 2002 revised Commercial Act and the triangular reorganizational mechanisms like triangular share exchange and reverse triangular merger, etc., which seem to be implemented in 2015. Hostile M&A has been generally conceived as very effective means for producing new wealth in the corporate world, but, it has been criticized for incurring severe harms such as the transfer of wealth, coercion and unfairness. In the future regulatory changes, it is important to minimize the malfunctions and balance the conflicted interests between the shareholders and stakeholders in hostile M&A. In this paper, current legal regime in the Korean corporate and capital market law is comparatively reviewed and some legislative recommendations are suggested in the view of the three governing principles.