상법상 소수주주 축출제도의 문제점 및 그 개선방안 - 교부금합병, 지배주주의 주식매도청구권, 주식병합을 중심으로 -

A recent Korean Supreme Court decision ruled out that squeeze-out of minority shareholders through excessive share consolidation ratio does not constitute a enfringement of the principle of shareholder equality and minority shareholders may be ousted through the procedure a controlling has chosen among various minority shareholder eviction procedures under the Commercial Act, This decision casts some questions regarding the effectiveness of minority shareholders cash-out procedures to protect minority shareholders. In case of merger by absorption, an absorbing company may pay only cash consideration instead of allotting shares to the minority shareholders of an absorbed company, thereby minority shareholders being expelled from a company. There are some weaknesses in this scene. Firstly, there is no limit to the scope of absorbing companies that can oust minority shareholders of an absorbed company, so it is likely that minority shareholders of an absorbed company are increasingly exposed to the risk of becoming targets of squeeze-out. In addition, a general shareholders' meeting or a board of directors of an absorbed company to approve a absorption merger agreement containing provisions to cash out minority shareholders is under significant influence of an absorbing company as a controlling shareholder. In circumstance like this, it is very difficult to expect a shareholder meeting or a board of directors to take the interests of minority shareholdes into consideration during making a approval resolution. In case of compulsory acquisition right of a controlling shareholder, a controlling shareholder defined specifically in the Commercial Act exercise a right to acquire minority shareholders’ shares compulsorily. There are also difficulties with conditions to be met to exercise compulsory acquisition right. Firstly, the scope of controlling shareholders is defined so broadly that minority shareholders may easily be forced to sell their shares to the controlling shareholder. While the aggregate number of shares owned by a parent company and a subsidiary company may constitute a controlling shareholder, the scope of a subsidiary is not limited to a fully-owned subsidiary. Secondly, it is necessary for a controlling shareholder to acquire residual shares from minority shareholders that the approval of the general shareholders' meeting and achieving business purposes should be met. However, there is a strong view that just reducing shareholder management costs is enough to achieve business purposes. And the general shareholders' meeting under the control of a controlling shareholder is not competent for protecting the interests of minority shareholders. When stock consolidation(also known as “reverse stock split”) is carried out by way of legal capital reduction, the minority shareholders to be expelled due to consolidation ratio do not have an ex ante relief measure, such as the right to demand stock purchase, and may only seek to ex post relief measure like a lawsuit for invalidating capital reduction, the outcome of which is difficult to predict. Where minority shareholders are expelled through stock consolidation without capital reduction, minority shareholders also have no ex ante relief measure under the Commercial Act and may only rely on ex post relief measure, the outcome of which is difficult to predict. It can be said that these three methods of squeezing out minority shareholders have something in common in that they essentially involve a conflict of interests between the controlling shareholder and minority shareholders. Since they have common structures, it is appropriate to introduce homogeneous relief measures by law to protect the interests of minority shareholders in the same manner. What kind of relief measures are best suitable for the minority shareholders? Unfortunately, granting ex ante relief to the minority shareholders such as right to demand stock purchase or halt of procedure cannot meet the demands of minority shareholders who wish to remain as shareholders. And stopping the procedure itself may be said to put biased weight on the interests of minority shareholders. Granting ex post relief is not also satisfactory to the minority shareholders for they would be in the state of uncertainty till the end of relief process. It is preferable to adopt relief measures to balance the interests of the controlling shareholder who wants to proceed with business reorganization and the interests of minority shareholders who want to remain as shareholders or get adequate compensation for transferring their shares. The most attractive means of reconciliating these conflicting interests are the two procedures suggested by the MFW decision of the U.S. Delaware Supreme Court: an independent special committee’s resolution and majority of the minority shareholders to be expelled. Minority shareholders will be able to remain in the company or receive appropriate compensation through the above two approval procedures, and if both of these procedures have been completed, the effectiveness of business reorganization is less likely to be denied ex post by court. providing predictability to the controlling shareholder.