상장회사 합병과 합병비율의 공정성 - 관련 규정 및 사례에 대한 비판적 검토

The essential element of the merger is the merger contract, which determines all the principal matters surrounding the particular merger. The merger affects the interested parties of the companies, who need to be protected throughout the procedure. For this purpose, the Korean Commercial Act sets strict rules such as obligating the stock companies to write a merger contract which must include statutory requirements and be approved by the shareholder meeting. The most pertinent matter to shareholders in the merger contract would be the merger ratio. It stands for the ratio of the new shares which the surviving company issues to the shareholders of the extinct company. In essence this ratio is the price of the compensation that is provided to the shareholders of the extinct company in return for transferring of the company. To assure the fairness of the merger ratio, Korean Commercial Act provides direct or indirect regulative measures, and the rationale of the case clarifies that the significant unfairness of the merger ratio renders the merger null and void. Financial Investment Services and Capital Markets Act and its enforcement decree directly regulate the merger ratio by stipulating the method to assess the merger price when the listed company intend to conduct a merger. This paper will raise questions regarding legality of the provisions of the enforcement decree of Financial Investment Services and Capital Markets Act and then criticize the merger between Samsung C&T Corporation and Cheil Industries in 2015. Assessing the merger price and the merger ratio is not only the technical matter but also the issue of the limitation of the right to property, which calls for weighing of the interests of related parties, thus it needs to be directly controlled by the law legislated by the National Assembly. Therefore providing the method to determine the merger ratio by the enforcement decree, not by the Act, is unconstitutional because it violates the doctrine of parliamentary saving. To be a fair merger ratio, the value of the shareholder's equity must stay equivalent before and after the merger. The shareholders of the extinct company receive the stocks of the surviving company in return for their stocks in the extinct company, the value of which must be preserved. Thus the merger ratio which infringes the principle of preservation of the value results in the unconstitutional violation of the shareholders' right to property. In this sense, in conducting the merger the shareholders of the extinct company must be assured to receive more than the liquidation value of the extinct company. However it may not always be right to guarantee the liquidation value since the market price of the stock might go lower than the value of the net asset in relation to the earning value. Nevertheless, the liquidation value may function at least as the prima facie standard for setting the lowest limit of the merger price. In this case the market price of the stock was significantly lower than the value of the net asset even considering the earning value, thus the presumption of fairness must be rebutted even though the merger ratio was calculated by the enforcement decree. In such case, the merger price should be calculated based on the comprehensive analysis of all the related elements including the market value. In sum the merger ratio in the merger between Samsung C&T and Cheil Industries was illegal because the related provisions, on which the merger was based, are unconstitutional. Even if the related provisions are constitutional, the merger should not be presumed fair because the market price of the stock falls significantly short of the value of the net asset. For these reasons, the merger in this case, may be defective because the calculation of the merger ratio was either illegitimate or significantly unfair.