지배주주의 매도청구권, 소수주주의 매수청구권의 적용요건의 재고찰 - 지배주주의 요건, 자기주식의 취급을 중심으로 -

The Korean Commercial Code(“KCC”) introduced provisions for corporate squeeze-out and sell-out(§§360-24~360-26) in 2011. A particularly intriguing problem arises regarding treasury shares without voting rights. Scholars are divided on whether the number of treasury shares is added up when calculating threshold. Recently, this issue was dealt with in the Supreme Court of Korea(“SCK”)(2016Ma230). The SCK held that the defendant was the controlling shareholder of the company. The court’s reason was that the treasury shares were added up both to outstanding shares and the shareholdeings of the defendant, since KCC does not exclude threasury shares when calculating threshold. As the threshold is a common requirement of both squeeze-outs and sell-outs, this decision could set an important precedent for how to treat treasury shares when interpreting the threshold. The purpose of this article is to examine the Korean rules on squeeze-out, focusing on the issues arisen from treasury shares. Part II sets forth the 95% threshold of controlling shareholder. One tricky problem regarding the threshold is how to interpret the term holding on her or his account under Article 360-24(1). Commentators are divided on the meaning of the phrase “on her or his account.” The prevailing opinion from legal scholars is that it does not depend on “a nominal shareholder in the register of shareholders of the company, namely, a record owner,” but on “a beneficial owner.” Second, the term holding is to be interpreted as actual ownership. Thus, if a person who has been delegated to exercise shareholders’ rights, the delegated shares are not aggregated to her or his shareholdings. Part III deals with a particularly intriguing problem regarding treasury shares. The case mentioned above is concerned with sell-out right, thus the court presumably could have given considerable thoughts to the protection of minority shareholders. But the requirement of threshold is common in squeeze-out and sell-out. Once a rule has been declared, it could be easily applied to other cases including squeeze-out case. According to SCK’s logic, when a controlling shareholder, a parent of subsidiary with only more than 50% of shares, wants to squeeze-out minority shareholders, then it can accomplish the purpose of squeeze-out easily, after acquiring additional shares with company’s money. Looking at the overall rules concerning treasury shares, the KCC should be clarified the requirement for meeting the threshold to prevent it from being misused by shareholders.