간이합병을 활용한 중소기업의 경영권 승계 및 합병유지청구권의 도입

In order to seek the process for business succession of small and medium sized companies by utilizing M&A, the buying company, which plans to succeed business management of target company, needs to acquire more than two-thirds of shares from the business owner of the target company. After representatives of each company enter into M&A contract, the contract should be approved through a special resolution of the shareholders’ meeting of each company. In order for the heir to succeed the surviving company after the merger, it is necessary to freeze out the remaining minority shareholders from the target company. Since merger consideration has been liberalized under the revised Korean Commercial Code(“KCC’) of 2011, money or other property instead of surviving company’s stocks can be provided to the shareholders of the target company (Cash Out Merger, KCC § 523(4)). Freezing out remaining shareholders of target company by compensating money instead of stocks of remaining company enables to exclude remaining minority shareholders or shareholders who are not the heir from the target company, it can stabilize business management of succeeded company. Although cash out merger has some merits in accelerating corporate restructuring by liberalizing merger consideration, the protection of minority shareholders of target company becomes very important issues because cash out merger can undermine the interests of minority shareholders. Cash out merger expands the scope of application of freezing out minority shareholders because it can freeze out minority shareholders by utilizing cash out merger without satisfying the requirement of owning 95 percent shares of target company to acquire controlling shareholders’ rights to request sale (KCC § 360-24(1)). Even though minority shareholders must be compensated for fair price, standards for determining and computing fair price seems to be difficult. The approval of shareholders meeting of target company can be substituted for the approval of board of directors (KCC §527-2(1)) if the surviving company acquires more than 90 percent common stocks exceeding two thirds from the business owner of target company during M&A process. Even though the surviving company acquires more than 90 percent of target company, if the controlled company to be extinguished is public company and does not issued class stocks and non-transferable stocks, it is necessary to introduce an article which requires the approval of shareholders of target company instead of short form merger process in case non-transferable stocks of surviving company are provided to the shareholders of target company for merger consideration. Following short form merger process under these circumstances results in restricting the transfer of stocks newly without the approval of target company and shareholders of target company will receive non-transferable stocks which is difficult to exchange for money. If the target company issues class stocks and non-transferable stocks are provided to shareholders of target company as partial or whole merger consideration, it needs to introduce a provision that the merger does not take effect without the approval of general meeting of class stock shareholders in addition to specific resolution of general shareholders’ meeting of target company. Without proper protection, it can cause damages to the shareholders of target company who receive non-transferable stock. Protecting minority shareholders of target company is more important if the buying company pursues short form merger. Since director or controlling shareholders’ duty of loyalty is not guaranteed under the KCC, it is more crucial to introduce preliminary injunction provision under the KCC in order to protect minority shareholders of target company dissenting corporate restructuring. It needs to establish preliminary injunction provisions under the KCC as follows: ⅰ) in case corporate restructuring violates laws and articles of corporation and there exists a danger that shareholders may suffer disadvantage, the preliminary injunction is allowed for statutory corporate restructuring, ⅱ) when consideration or allocation of corporate restructuring becomes extremely unjust in terms of corporate asset and other circumstances and there exists a danger that shareholders may suffer disadvantage, the preliminary injunction is allowed only for short form merger. In addition, preliminary injunction provisions also needs to be introduced with respect to controlling shareholders’ rights to request sale (KCC § 360-24) and consolidation of shares (KCC §§ 440-443).