미국 주주행동주의의 현대적 전개와 성과에 관한 비판적 고찰

Shareholder activism, which was initiated to protect minority share- holder's rights and promote corporate social responsibility, develops into a new era. Hedge fund activism coupled with stewardship activism is a prominent approach to explain this phenomenon. An activist shareholder has its behavioral patterns and strategies. However, in the United States, there begins to emerge a strategic convergence among activist investors. Specifically, co-investment between a hedge fund and pension fund tends to enhance its convergence for its profitability. Unlike the past, hedge fund, which is not interested in taking over control anymore, tries to get other shareholder's support by pretending to be a shareholder advocate. To this end, a hedge fund brings the relation with a pension fund, the traditional investor to seek long-term shareholder value, to the fore. A pension fund is also affirmative to make solidarity with hedge funds because it suffers from low profitability originated from its rigid asset allocation of safe assets. In the U.S., however, by joining forces with hedge funds and insti- tutional investors, especially pension funds, some activist shareholders are likely to exercise their influence disproportionate to their shares. For example, the activist hedge fund utilizes the strategy so-called wolf pack tactic to avoid rules and regulations under the U.S. Securities Exchange Act on the sum of shares stipulated to prevent unfair trading. This has raised concerns that some activist shareholders with the loose network will uniquely benefit themselves while failing to benefit or even harming the company and other shareholders. This study firstly argues whether shareholder activism should be enforced despite its pros and cons. This study also critically reviews the reinforced requirement of reports by persons acquiring more than five per centum of certain classes of securities(hereinafter “integrated disclosure requirement”) as well as imposing a duty of loyalty on an activist shareholder to avoid the situation that the benefit from the activism is solely vested in the activist. As for the integrated disclosure requirement, there is an opinion that suggests reducing the equity ratio and grace period of the require- ment to prevent unexpected solidarity such as the wolf pack tactic. However, it is unlikely to be a logical approach. This is because ① strengthening the requirement itself does not specifically target the activist shareholder who tries to get their interest at the expense of other shareholders. Rather, it affects the entire investors; ② hedge fund is generally not interested in managerial control itself even though the requirement is mainly set for the anti-takeover. For these reasons, because the current problem stems from the lack of clear criteria to deduce an agreement, it would be proper access to come up with specific criteria either to shift the burden of proof for the agreement or to deduce the existence of an agreement. Next, it needs to impose a duty of loyalty on the activist share- holder to prevent the exercise of undue influence by a particular activist shareholder. Given the changing business environment, the existing corporate legal basis that shareholder is free from other respon- sibilities other than a limited liability to the company needs to be reconsidered. This is mainly because the principle of shareholder limited liability just confines shareholder liability for the debt of the company rather than exempt from liability for exercising undue influence. It needs to study various aspects of shareholder activism to prevent it from degenerating into a business profit model for certain shareholders.