자발적 상장폐지 및 소수주주 축출 제도의 개선 과제

Going-private and the freeze-out of minority shareholders represent one of the most critical points of conflict between controlling shareholders and minority investors in listed companies. Recently, controlling shareholders have increasingly utilized cash consideration in share exchanges to effectuate delisting while freezing out minority shareholders. This trend has raised concerns regarding the procedural fairness and the adequacy of pricing in such transactions. In parallel, the recent amendment to Article 382-3 of the Korean Commercial Code has highlighted the need to clearly define the duties and liabilities of directors involved in these transactions. This article examines the current practice of going-private and minority freeze-outs, identifying structural problems such as opportunities for regulatory arbitrage and loopholes in investor protection. It argues that such transactions operate as structurally conflicted processes that exert pressure to tender on minority shareholders, thereby necessitating not only institutional redesign but also explicit guidance for directors. The article further examines the implications of the recent amendments to the Delaware General Corporation Law, including the introduction of a majority-of-the-minority vote requirement as a procedural safeguard. It also analyzes Japanʼs Fair M&A Guidelines and relevant judicial decisions on appraisal rights. Based on this analysis, the article proposes three key reforms. First, mandatory tender offers, coupled with minimum ownership thresholds and majority-of-the-minority requirements in the initial offer, should be established and integrated with price determination proceedings to mitigate investor protection loopholes. Second, it calls for legal or regulatory standards to prevent regressive pricing structures, and urges courts to give due consideration to the unique dynamics of going-private and freeze-out transactions in pricing decisions. Third, directors of public companies should recognize their duty in going-private and freeze-out transactions to independently review the transaction terms, participate substantively in negotiations with controlling shareholders, and engage with minority shareholders to ensure that minority shareholders receive fair consideration. At the same time, the article emphasizes the need for appropriate safe harbor mechanisms and liability limitations to avoid an excessive expansion of director liability.