주식양수도의 상법상 통제방안에 대한 소고

A sale and purchase of shares is the most popular method of corporate reorganization in Korean M&A(Merger and Acquisition). The purchaser of the shares of a target company(hereinafter the “T”) through the purchase and sale of a controlling block of shares of T acquire an incorporated business at a high control premium. Also, the acquirer of the assets and business of T through the acquisition of the assets and business of T have the control over T. An Acquirer acquire all the shares of T and control T through the compulsory share exchange with T. Both acquisition of assets and business of T and compulsory share exchange requires T’s shareholders approval under the Korean Commercial Code(hereinafter the “KCC”). However, the purchase of dominion over T by an acquirer through the agreement of sale and purchase of shares does not alter the legal identity of T, and the minority shareholders of T still hold the shareholder’s rights of T. Thus, minority shareholders of T are entitled to sell their shares to another freely, but with no chance to have gains, also called control premium. 52) Should the seller of controlling block of shares(controlling shareholders) of T distribute the gains acquired by the sale and purchase of such shares agreement to minority shareholders? Under the KCC, shareholders are entitled to sell their shares even at substantial premium without any restriction, provided that a company may require the transfer of shares by the approval of the board of directors, as determined by the articles of incorporation{Article 335(1)}. Sale and purchase of shares is completed by the private agreement between the seller and the purchaser of shares of T. The KCC has no collective corporate regulation on the sale and purchase of shares, while regulate the asset and business transfer and the compulsory share exchanges by organized collective corporate rule. The KCC provides diverse methods in order to promote the effective corporate reorganization. Acquirer of T may select the optimal choice to achieve its goal in quick and inexpensive ways to acquire the control of T. In other words, the KCC recognizes the distinction of each ways to reorganize the corporation, and thus provides different ways to regulate them, respectively. Disregard of the segregation of the regulation by the KCC would not be acceptable. Therefore, the suggestion to add a vote and appraisal rights of minority shareholders of T as a primary protective method of such shareholders in a sale and purchase of controlling block of shares of T between a seller and a purchase, should be carefully examined.