지배주식의 양도와 경영권 이전－ 대판 2014. 10. 27, 2013다29424의 평석을 겸하여 －

The author tried in this article an annotation on the Korean Supreme Court Case, sentenced on the 27th October, 2014, Docket Nr. 2013 Da 29424. The stock acquisition contract became recently in Korea the most prevalent as a friendly M&A tool chosen by competent legal practitioners. At the same time there are also some legal uncertainties surrounding this acquiring tool. There can be observed nowadays in Korea a hot discussion on whether any special resolutions of the shareholder meeting either in a target or in an acquiring company are needed for the effectiveness of this M&A contract. Should the shareholders approve the contract? The Korean Supreme Court has been until now in a stable and coherent position that special resolutions of shareholders are not needed ; Neither the shareholders of a target nor the shareholders of an acquiring have a right to vote on the stock acquisition. Their right to refuse the offer is a substitute for their right to dissent in a vote. In the meantime the M&A contract in this case could only be partially performed after the Korean FSC (Financial Services Commission) decided, to prohibit the parties from selling any controlling shares. The positions of the parties is to be restored following the nullification of the contract. Debates came thereby on the concurent conditions and the defense of uncertainty ( =Unsicherheitseinrede ). The author has also tried to define the concept of management right by introducing various opinions from the literatures and court decisions, distinguishing between the management right and the operating right.