계열사간 조직재편과 공정성 확보방안- 상법 제382조의3 관련 개정 논의의 효과를 중심으로 -

The amendment to the Korean Commercial Code, which expands the duty of loyalty of directors to shareholders, passed the National Assembly plenary session on March 13. However, it returned to the National Assembly due to the government’s veto, and was ultimately scrapped after a re-vote on April 17. The related discussions, which continued for a year, did not reach the final legislation, but the related discussions are by no means meaningless, and the author believes that the major flow of the subject of this paper has already changed. Considering the upcoming political schedule, including the presidential election, it is predicted that similar amendments to the law will be possible. The author doesn’t think it matters much whether it is a major amendment (Commercial Act amendment) as the opposition party advocates or a small amendment (Capital Market Act amendment) as the government and the ruling party advocates. What is important is the fact that our country’s M&A laws cannot ignore global trends. There were some problems in the opposition party's plan as well. Since the relationship between the duty of care and the duty of loyalty was understood as homogeneous, it is impossible not to point out some problems from the perspective of global consistency. Nevertheless, in conclusion, it is evaluated as a revision that conforms to global trends. Considering the domestic and international legal environments from various aspects, the following changes are expected, especially in the case of organizational restructuring between affiliates. First, there will likely be changes in the process of reorganization. One-sided procedures centered on controlling or major shareholders, as in the past, will not be possible. In particular, measures to ensure fairness, such as the establishment of a special committee to protect the interests of minority shareholders or a majority vote of minority shareholders, should be mobilized. The Financial Supervisory Service has already provided several related cases. Second, it has become easier to form case law for controlling shareholders’ duty of loyalty. There are already many precedents in advanced capital markets such as the United States and Japan. Domestic case law is also expected to develop in this direction. Third, considerable changes are expected in the evaluation of corporate value. In the case of reorganization between affiliates, various evaluation techniques that have been developed in advanced capital markets should be mobilized, rather than focusing on market prices. Fourth, changes are also expected in the possibility of holding directors of the companies involved in the reorganization accountable. We must move away from the backwardness of the domestic capital market and move to an advanced capital market that matches the global level of our national power. The discussions surrounding the revision of Article 382-3 of the Korean Commercial Code are evaluated positively in themselves.