삼성물산과 제일모직간 합병시 시세조종 및 수탁자책임 문제

With regard to the merger of Samsung C&T and Cheil Industries in 2015, although there has been a lot of discussions among scholars and legal experts, this paper tried to review this issue like manipulation relating to the Samsung C&T’s stock price and fiduciary duty of the National Pension Service(NPS) etc through referring to lower instances and relevant regulations. First, this paper reviewed whether it satisfies the requirements of manipulation that the Samsung C&T reduced amount of orders artificially in spite of starting a certain large construction before the timely disclosure of the merger decision by the board of directors, thus the merger price and the call option strike price became higher than those prices in case of absence of the actions by the Samsung C&T. Second, this paper reviewed whether it satisfies the requirements of manipulation that the NPS sold its own stocks of the Samsung C&T in large amounts for several months before the merger decision by the board of directors. As a result of first review, the actions by the Samsung C&T is enough for satisfying the requirements of acts of disturbing market order(namely, market abuse) as a kind of unfair transaction though they might fail to satisfy the requirements of manipulation. As a result of second review, the actions by the NPS is enough for not only satisfying the requirements of market abuse but also those of manipulation. However, a penalty surcharge can not be imposed on those actions because they occurred before the effective date of market abuse. In sequence, this paper reviewed whether it breaches the duty of fiduciary who operates a big fund collected from the public that the NPS decided to vote in favor of the merger. Consequently, the decision of NPS might lead to violating provisions of fiduciary duty in the National Pension Act and good faith in the National Finance Act. Futhermore, the decision might cause a liability of compensation in the State Tort Liability Act and the Civil Code, and it does not comply with the principles relating to voting stocks for institutional investors in the Stewardship Code established in 2016. In addition to this, through reviewing the merger case between the HP and the Compaq in 2002, it became apparent neither the fiduciary duty of the NPS might arise from the fact that it did not accept dissenting opinions of the merger by advisory institutions like ISS or it did not delegate the authority of deciding a vote in favor of or against the merger to the specialized committee for voting, but it looks into the fact that it did not provide the investment committee in charge of voting in favor of or against the merger with the sufficient information like dissenting opinions of the merger by advisory institutions. Lastly, hearing the plan of the NPS for strengthening responsibility investment and introducing the Stewardship Code until December of 2017, I really expect that the NPS will consider critical discussions about voting in favor of the merger, governmental policy focusing on corporate governance and corporate social responsibility and so on in order to make a more reasonable plan.