비상장법인 간 흡수합병에 대한 동의에 있어서 소멸회사의 주주인 회사의 이사의 주의의무와 책임 - 대법원 2015. 7. 23. 선고 2013다62278 판결 -

In a merger between HCN Chungbuk Corp.(HCNs) and Chungbuk Broadcasting Corp.(CBB), which are unlisted affiliated companies in Hyundai Department Store Group, the representative director of CCS Chungbuk Broadcasting Corp.(CCS), a controlling corporate shareholder of the disappearing CBB, approved the merger without resolution of the CCS board of directors. Plaintiff, a minority shareholder of CCS, brought a representative suit against CCS directors and auditor, contending that the director's approval without approval by the board, which corresponds to the disposal of the substantial asset to be approved by the board in the Commercial Code, is illegal and damages to CCS was caused by his breach of duty of care in appraising the would-be unfair merger ratio. The first instance court held that the director's sole approval is illegal and also the directors and auditor must pay for the damages to CCS, accepting the plaintiff's claim. Meanwhile, the court of appeal and the supreme court agreed with the first court in the illegality of the approval, but dissented the director's damage liability to CCS by reason of no breach of duty of care in the approval. In light of a director's duty to maximize the profit resulting from the disposal of substantial corporate asset, the author contends that the court of appeal and the supreme court should have more prudently considered the expectably feasible problems in applying the tax-based appraisal method, because there would be significantly unfair to the CCS in comparison with the market price presumption test and the general share value appraisal method, referred to as the Delaware Block Method, which has been generally applied in the substantive corporate merger transactions.