중국 자진 상장폐지 절차에서 소수주주의 강제축출제도 도입에 대한 법적 검토 - 한국 상법 제360조의 24～26과 비교를 중심으로 -

In Korea, the 2011 revision of the Commercial Act introduced Article 360-24 and Article 360-25, which established the mandatory sell-out right for controlling shareholders and the mandatory buy-out right for minority shareholders. This legal framework was designed to enhance corporate efficiency, reduce management costs, and maintain a complementary partnership among shareholders, introducing a system of forced minority shareholder exit. In contrast, while China has regulations in place for the mandatory buy-out right of minority shareholders, it has not adopted legislation focused on the controlling shareholder's mandatory sell-out right. As a result, China's current voluntary delisting system struggles to positively impact corporate efficiency, reduce management costs, maintain market order, and enhance social welfare. According to Chinese company law, controlling shareholders seeking to initiate a voluntary delisting process cannot force minority shareholders to sell their shares. During the 2017 revision of the Securities Law, a proposal to introduce a forced exit mechanism centered on the controlling shareholder's mandatory sell-out right was rejected due to concerns over protecting minority shareholder rights. Similarly, the 2023 revision of the Company Law only introduced the right of minority shareholders to request a buy-out in the case of mergers. Therefore, there is no provision in the current Securities Law or Company Law in China that includes a forced exit mechanism based on the controlling shareholder's mandatory sell-out right. Given the expanding Chinese securities market, there is a growing need for China to consider adopting a forced exit system for minority shareholders, similar to South Korea's Commercial Act, with a focus on the controlling shareholder's mandatory sell-out right. This paper examines three key aspects of such a system by referencing the Korean model: the eligibility and scope for minority shareholder exit, the procedures for implementation, and the remedies available to minority shareholders. Such an approach would help balance the improvement of corporate efficiency and the protection of minority shareholder rights, thereby contributing to the activation of China's capital markets.