계열사 간의 합병과 회사법적 규제

Most of the countries, including Korea, are encouraging M&A by allowing various kinds of new deal. However, in Korea Chaebol takes great impact on economy and M&A between affiliates takes great portion in M&A. Nullity of merger, breach of fiduciary duty and dissenting shareholders’ right of refusal are applied to the merger which has some legal problems. However, such application shows that they are not good ways to the merger between affiliated companies such as Samsung Mulsan Merger where conflict of interest exists. I would like to suggest some points to address these issues. Most of all, we need to reconsider too much reliance on market price. Market price is a good method for evaluation comparing with other methods. However stick to such a price in the case of such a merger creates some problem. Especially a drop in a price prior to evaluation date is considered natural reflecting efficiency of a market price. Synergy effect is not reflected on a merger price either. In such a interested transaction, other methods should be used with or without a market price. Our court case holds that if a director of a merged company enters into a merger agreement based on the market price, she does not violate her fiduciary duty and there is no damages in the corporation. The standard for nullify of merger is applied to fiduciary duty action which is not right. The court must clarify that BJR is not applied to an interested transaction and burden is shifted to a defendant because such a director or corporation creates high possibility of damages. If such burden is shifted, such a director would care more about merger price during the transaction to show that she made her best efforts. This operation in a procedural law is expected to establish the entire fairness standard in a substantial law.