유럽과 우리나라의 의무공개매수제도 상 공동행사 개념: 기업의 지속가능성 제고 방안을 중심으로

This article aims to suppress the adverse effect of the Mandatory Bid Rule (“MBR”) while keeping its virtuous function working. The former means the MBR may restrain the shareholders’ collective action seeking to establish sustainable corporate governance, and the latter means the MBR’s original object, which protects remaining shareholders from the pressure to tender even when control over a corporation is changed by shareholder activism. Overseas, shareholders’ collective actions pursuing ESG did not satisfy in just expressing opinions regarding their desire, rather, actually replaced board members of the corporation they invested in early on. From the beginning of shareholder activism, countries that introduced the MBR recognized its critical downside, which likely obligates shareholders to make a mandatory offer even when they try to improve the governance of the company they invested in. This problem originated from the fact that their engagement in the corporation has room to meet the meaning of ‘acting in concert’ under the takeover regulations of each country. To protect shareholders’ collective action, European society has established a mechanism that exempts the actions from the MBR only when the purpose of the engagement is to improve corporate governance, not a board control-seeking. In other words, Europe subdivided the meaning of ‘acting in concert.’ On the other hand, though the concept of ‘acting in concert’ was defined too broadly as its purpose at the time of its first establishment under South Korea’s securities law, the original concept has reached today without any significant changes. Against this background, this article proposes a way to make the concept of ‘acting in concert’ sustainable like those in European countries.