Cross-Border M&A의 법적 기반조성 방안에 관한 연구 - 국제적 합병을 중심으로 -

It was reported that some cases of domestic company's triangular merger toward the US company have occurred since 2011 revision of the Commercial Act. Upon this opportunity, this article reviewed the legal basis of EU, US and Japan comparatively and suggested the legislative, interpretive and practical solutions to some problems surrounding the legal infrastructure of Cross-Border Merger as follows. First, cross-border direct merger shall be admitted interpretively by taking into consideration of the economic benefits and internationally increasing trends of the mergers, but it is more promising that legal basis of the merger should be stated explicitly for securing legal stability of the merger practices as the current triangular merger provisions in the Commercial Act. In relation to applying governing rules to the mergers, both domestic governing laws of the parties should be respectively applied to the general merger procedures, but a stricter regulation of the parties' governing laws should be applied to the common matters among contents and types of the merger agreement according to the unification or cumulative theory. Additionally, legal basics of merger registration should be quickly and clearly defined in the current commercial registration rule. Next, in cross-border triangular merger between domestic parent and foreign target, foreign subsidiary should be treated equally as the legal status of domestic subsidiary company in the Commercial Act. And sale of domestic parent's own stocks, acquired by use of distributable profit, to the foreign subsidiary for paying the consideration of the merger should be considered as valid. It is because the parent can dispose of stocks discretionally as one of it's own assets. Corporate values of both of the subsidiary and target company should be evaluated for estimating the ratio of the merger, and also probability of choosing more fair value estimation models should be provided to the merger parties. Moreover, use of the nominee accounts, in which a stockbroker or central securities depository and settlement system holds shares belonging to real shareholders, making buying and selling those shares easier, and also the easier listing procedure of stocks of foreign parent company in the domestic Stock Exchange could be reviewed for preventing the practical inconveniences of paying foreign parent's stocks as a merger consideration to domestic shareholders and reducing it’s legal risks. Finally, essentially material information on the foreign parent company in the cross-border merger should be mandatorily disclosed to the shareholders.