상법상 소수주주의 주식매수청구권 강화에 대한 소고- 상법 개정안 중 영업양도시 반대주주의 주식매수청구권에 대한 효력발생일을 중심으로 -

On November 24, 2023, the Ministry of Justice submitted a proposed amendment to the Commercial Act to the National Assembly. This paper examines the amendment's primary objective of strengthening minority shareholders’ appraisal rights and investigates whether regulatory arbitrage exists among business transfers, share exchanges, share transfers, and mergers under the Commercial Act. According to Article 374-2, Paragraph 2 of the proposed amendment to the Commercial Act, the effect of the stock purchase occurs on the effective date of the business transfer, provided that the company has fully paid or deposited the purchase price for the dissenting shareholders who exercised their appraisal rights. This provision appears to emphasize corporate restructuring principles by adopting the creditor-status theory. However, rather than fully embracing the creditor-status theory seen in U.S. and Japanese legislation, the proposed amendment to Article 374-2 adopts a hybrid approach by stipulating that dissenting shareholders lose their rights only if the company has fully paid or deposited the purchase price. While Article 374-2 of the proposed amendment seeks to protect the appraisal rights of minority dissenting shareholders through a hybrid creditor-status theory, my review suggests that, unlike in mergers, corporate splits, share transfers, and share exchanges, the effective date of a business transfer remains ambiguous. As a result, companies may have the opportunity to initially propose a low valuation price, fully pay the dissenting shareholders by the effective date, and then deliberately delay the finalization of the corporate restructuring transaction, thereby engaging in opportunistic behavior. To prevent this and to uphold the original intent of Article 374-2, I considered several measures: requiring the business transfer date or the completion date of major asset transactions to be disclosed in the notice of the general shareholders' meeting regarding business transfers, amending the business transfer provisions of the Commercial Act to adopt a comprehensive succession framework, and mandating timely disclosure under the Financial Investment Services and Capital Markets Act. However, I find these measures insufficient to actively prevent opportunistic behavior by companies. Therefore, I propose referring to Article 469, Paragraph 3 of the Japanese Companies Act and amending Article 374 of the Korean Commercial Act to include a procedure requiring notification or public announcement to dissenting minority shareholders at least 20 days before the effective date of the business transfer.