소수주주 축출제도에 있어 경영의 효율성 제고 및 소수주주 보호 이념의 조화 - 대법원 2020. 6. 11. 선고 2018다224699 판결 및 대법원 2020. 11. 26. 선고 2018다283315 판결의 평석을 겸하여 -

It has been 10 years since the Korean Commercial Code (the “KCC”) amended in 2011 adopted the system for squeeze-outs under Articles 360-24 through 26. In 2020, Korean Supreme Court decision no. 2018da224699 rendered on June 11, 2020 and the Supreme Court Decision No. 2018da283315 rendered on November 26, 2020 on the effect of the consolidation of shares under the purpose of freeze-out minority shareholders. The former decision ruled that, in order for a share transfer to take effect pursuant to Article 360-26, the controlling shareholder shall pay or deposit the purchase price to the minority shareholder, and the meaning of the purchase price above shall be the final purchase price agreed with the minority shareholder or determined by the court. In the latter case, it was held that the consolidation of shares for the purpose of freezing-out minority shareholders does not violate the principle of shareholder equality, the principle of prohibition of abuse of rights, or the principle of good faith. The squeeze-out system enhances management efficiency while allowing minority shareholders to receive fair compensation. The theoretical foundation is based on corporate flexibility theory. In 1983 Weinberger v. UOP, he Supreme Court of Delaware ruled that in case a fair consideration was paid in the cash-out merger, it is possible to squeeze-out the minority shareholders against their will, while business purpose is not necessary. German and Japanese’s squeeze-out systems also do not require a separate business purpose when a minority shareholder is created under the influence of the Weinberger decision. On the other hand, the squeeze out system in Korea explicitly requires the business purpose, and the time of share transfer is also stipulated as the time when the controlling shareholder pays or deposits the amount determined by the court decision to the minority shareholder, so that the legal relationship under the corporate law becomes unstable for a long period (2-3 years). Moreover, according to court precedents, share consolidation for the purpose of freezing-out minority shareholders is applicable. Therefore, a controlling shareholder can easily squeeze-out minority shareholders in a lower level of equity than the requirements for the right to request for sale, which causes defects in protection of minority shareholders. The conclusion is three legislative theories: First of all, while deleting the management purpose requirement under Article 360-24, Paragraph (1) of the KCC, the majority vote of minority shareholders shall be also adopted. Secondly, through the amendment of Article 360-24, Paragraphs (6) through (8) of the KCC, the share transfer should become effective on the date of squeeze-out if the controlling shareholder pays or deposits the offered price, and the requirements for appraisal should be strengthened simultaneously. If it is impossible to do so, the controlling shareholder shall be exempted from the incurrence of damages for delay by depositing the proposed value. Finally, under the procedure for dealing with fractional shares of Article 443 of KCC minority shareholders shall be able to request the court to determine the purchase price. This article aims to harmonize the legislative intent of reducing shareholder management costs and protecting minority shareholders through the proposed amendment.