독일의 합병 반대주주의 주식평가청구권

In South Korea, as in other jurisdictions, minority shareholders who face unfair merger ratios have legal protections. Although supermajority votes at shareholders meetings can protect minority shareholders to some extent, shareholder approvals of mergers in related-party transactions, the motive for which is usually empire-building by controlling shareholders, are less effective at doing so as the controlling shareholders on both sides of these mergers will determine the merger ratios. Besides, only mergers falling under §176-5(7) of the enforcement decree of the Financial Investment Services and Capital Market Act can receive an independent assessment of merger terms. Although minority shareholders can apply for injunctions against unfair mergers, academics believe that courts are unlikely to grant them due to the fact that such decisions cannot be made within the limited time imposed by the merger. Minority shareholders who want to challenge unfair merger ratios have three ex post protections: merger annulment, holding directors liable for breach of duty, and exercising their appraisal right as an exit strategy. With regard to the first protection, according to most academics and obiter dictum in court, mergers could be nullified if their merger ratios are significantly unfair, but such a situation is neither plausible nor practical after mergers have been perfected. No court has yet voided a perfected merger on the grounds of a significantly unfair merger ratio. With regard to the second protection, in South Korea, directors owe a duty to the company but not to the corporation’s shareholders, so to hold them liable, there must be a logical argument that shows that minority shareholders’ and the corporation’s losses are caused by the unfair merger ratio and that they are connected. With regard to the third protection, the appraisal right allows dissenting shareholders to require the corporation to pay them the fair value of their shares prior to the perfection of the merger. However, in order to exercise the appraisal right, shareholders must go through the proper procedures. The Restructuring Act(Umwandlungsgesetz) in Germany also provides the right to challenge the fairness of the merger price, meaning that the merger ratio is subject to challenge by any individual minority shareholder before a court. This right to challenge the fairness of merger prices in Germany is similar to the appraisal right in South Korea. However, the difference between these rights is that, in Germany, shareholders of merged companies can petition a non-contentious litigation procedure, the surviving company for the difference between the value of their shares they received upon merger and the fair value they claim they should have received for them. It has successfully served as a deterrent to unfair merger in Germany. According to Calabresi’s taxonomy, Germany’s right to challenge the fairness of the merger price is a type of liability rule, which are more efficient and effective than property rules at resolving holdout problems. Although this right has its own shortcomings, for which amendments have been proposed by the German Lawyer’s Association(DAV), it can serve as a useful reference about how to protect minority shareholders when they oppose unfair mergers in South Korea.