계열회사 간 기망적 합병과 합병무효 -삼성물산·제일모직 합병을 중심으로-

Korean Commercial Act(KCA) assumes that the merger is arm’s-length mergers between unrelated parties. In Korea, however, mergers between affiliated companies belonging to the same conglomerate are overwhelming rather than arm’s-length mergers which is originally intended by KCA. A Merger between affiliates may cause problems when applying KCA. This is because the merger is controlled by the same controlling shareholder, which may result in favorable conditions for the controlling shareholder. In particular, the merger that is favorable to the controlling shareholder can lead to the transfer of wealth from minority shareholders to controlling shareholders. A case in point is the merger between Samsung C & T Corp. and Cheil Industries Co., Ltd. (hereinafter referred to as the “this merger”) At the time of this merger, minority shareholders of Samsung C&T take various legal actions against Samsung C&T for the prohibition of this merger. But all of them were dismissed. After the completion of this merger, a lawsuit on nullification of merger was sought, only to be rejected by Seoul Central District Court. Notwithstanding all the lawsuits against the legitimacy of the merger were lost, this paper, brings up fundamental questions on the legitimacy of this merger. KCA provides a lawsuit on nullification of merger as a way of contesting the effect of the merger itself. Although KCA does not stipulate any specific reasons for nullification of merger, the followings are widely acknowledged: ① any breach of laws governing the merger, ② any failure on merger contract with statutory requirements, ③ any defects of approval resolution, ④ any violation on creditor protection process, ⑤ significantly unfair merger ratio. In addition to the reasons above, this paper invites ‘fraudulent merger’, an American term, and seeks its illegitimacy in Korean market by comparing it with ‘defect of the merger contract’ or ‘misrepresentation of merger documents’, two Japanese terms. Based on these discussions, this paper proposes that ‘this merger’ may be considered as a fraudulent merger which is voidable. The conclusion of this paper is summarized as follows: ① Any violation on ‘fairness of merger’ may be recognized as a reason to nullify the merger. In particular, if the merger process fails to provide accurate information and to give equal decision making opportunity, fairness of the merger should be considered to be infringed. ② If the management violates fairness of the merger by deceiving shareholders, there is a cause for rescission of the merger resolution, making the merger invalid. ③ It is fraudulent that the management’s material misstatements or omission on merger-related documents, violating duty to disclose of Financial Investment Services and Capital Markets Act(FISCM Act). This can be recognized as a defect infringing fairness of the merger, considerable to nullify the merger. ④ If a proxy-solicitor violates Article 154 of FISCM Act by making a faulty contribution to the reference documents, the approval resolution may be significantly misled to have a cause of rescission. ⑤ It makes the merger be ineffective if the controlling shareholder gains unfair profit at the expense of minority's loss through the merger, whose the only goal is the acquisition of corporate control. ⑥ If the primary and true purpose of a merger is to take corporate control, it is reasonable to treat it the same as if it were the sole purpose of the merger. ⑦ As this merger documents did not inform the true purpose of this merger, the omission is considered to materially violate the Disclosure requirements of FISCM Act. The poor disclosure may be regarded as harming fairness of this merger process, reasonably enough to nullify the merger. ⑧ The approval resolution can be acknowledged to have a cause of rescission as Samsung C&T has not disclosed the true purpose of this merger in its reference documents for proxy solicitation.