지배주주의 지배권 양도에 대한 회사법적 검토 −지배권 프리미엄의 귀속과 지배주주의 충실의무를 중심으로−

The control premium (“CP”) is the amount set higher than the market price to secure the privileges of controlling shares. The US recognizes the freedom to transfer controlling shares and does not require the CP to be shared with minority shareholders (“MS”). This is because the CP is considered a property interest reflecting the intrinsic value of controlling shares. The UK, Germany, and Japan generally require mandatory bids (“MB”) for all shares when control is acquired. MB is based on the principle of shareholder equality and aim to protect MS by sharing the CP with them. In Korea, the CP is allocated to the controlling shareholder (“CS”) when control is transferred. Therefore, discussions are actively underway to introduce MB to protect MS. The FSC has proposed a plan requiring the largest shareholder holding 25% or more of listed companies to conduct MB and acquire at least 50% plus one share. Despite the necessity of protecting MS, (i) the CP is a right of the CS and should be given priority protection, (ii) the MB has no direct relevance to the principle of shareholder equality, (iii) the fact that MS’ desire not to change control cannot justify the MB, (iv) the difficulty of protecting MS through MB for specific stock ratios such as 50% plus one share, and (v) the fact that the MB reduces the liability of CS. Therefore, the fiduciary duties of CS as an alternative is appropriate. It is preferable to assess violations of the fiduciary duties of CS on a case-by-case basis in sale of control. CS should bear legal responsibility through their fiduciary duties while holding CP, which is fair. A CP resulting from violating the fiduciary duties of CS can be attributed to the company and MS, thereby effectively protecting MS. By the fiduciary duties of CS, it is possible to enhance corporate management efficiency while protecting the interests of CS, acquirers of controlling shares, and MS.