상법상 소수주식 전부취득제의 경영상 목적에 관한 연구

In Korea, there is a squeeze-out which gives the controlling shareholder the right to buy-out the shares of the minority shareholder even if it is not a merger. For squeeze-out, the legitimate business purpose is required under the Korean commercial act. This business purpose originated from the past US case laws which required the legitimate business purpose in the case of a so called freeze-out merger. The US courts in the 1970s and 1980s accepted the legitimate business purpose in many freeze-out merger cases. The specific contents of the legitimate in the US cases were (i) overcoming difficulties in company operation, (ii) resolving conflicts between shareholders, (iii) securing investment returns, (iv) securing company funds through outside investment attraction (v) preventing duplicate investment, (vi) efficiency of company operation, (vii) reduction of company costs, and (viii) prevention of conflict of interest. The US courts accepted the various kinds of business purposes, and it means that the US courts accepted a wide range of business purposes in the merger cases except for merger for a freeze-out only. Business purpose required by a squeeze-out under the Korean commercial act is for the purpose of the protection of the minority shareholder. However, business purpose is essentially incompatible with the squeeze-out under the Korean commercial act. What the Korean commercial act requires for the business purpose is that the acquisition of the minority shares by the controlling shareholder for the sole purpose of eliminating the minority shareholder is not permitted, and it contradicts the purpose of a squeeze-out, which is the essential purpose of eliminating the minority shareholder. The Korean commercial act seems to have overlook the differences between merger and squeeze-out. Basically the US cases accepting the business purpose in case of a freeze-out were related to the merger, and the cases demanded the business purpose in term of breach of duty of royalty in order to prevent the controlling shareholder from taking their own interests and causing damage to the company through the merger. On the contrary the squeeze-out under the Korean commercial act is not a merger but the separate system taken by the Korean commercial act for the acquisition of the minority shares by the controlling shareholder, and so there is little room for violation of duty of royalty by the controlling shareholder to become the problem, which may cause damage to a company. Also, the business purpose in the US cases were for the legitimate intervention by the courts in the merger. The US courts wanted to intervene in the merger through the business purpose because the fair merger itself would be fraudulent. However, the squeeze-out is for the purpose of eliminating the shareholder itself, and so as long as the legal process is followed, there is little chance that the controlling shareholder’s fraudulent behavior will become a problem. Plus, US cases did not recognize the business purpose in the case of merger for the sole benefit of the controlling shareholder, but squeeze-out under the Korean commercial act is a system centered on the personal interests of the controlling shareholder who wanted to acquire all of the minority shares. In addition, unlike the United States, which has a discovery, Korea does not have a discovery, and so it is difficult to determine the true business purpose of the controlling shareholder. Also, since the business purpose of the US cases had been widely accepted, there will be few cases where the business purposed is not accepted in Korea. In the end, it can be said that the practical benefit of the business purpose of the Korean commercial act is small. Considering these discussion it is not reasonable that the business purpose is required for the squeeze-out under the Korean commercial act. Therefore, it conforms with the essence of the squeeze-out to remove the business purpose from a legislative basis. However, considering the current Korean commercial act that requires business purpose, it is desirable to broadly accept business purpose in consideration of the contents accepted in US cases. It is important not to restrict the acquisition of the minority shares by the controlling shareholder by interpreting the meaning of the business purpose too strictly. Also, it is reasonable that the business purpose is considered as one of the comprehensive factors which judge the fairness of the price in the squeeze-out.