물적분할 후 재상장과 일반주주 보호에 관한 고찰- 이른바 재귀적 대리문제를 중심으로 -

This paper argues that the essence of the problems associated with IPOs after split-off is, in fact, the so-called recursive agency problem. Within a company, there exist “controlling shareholders”—those who control the company but possess only part of the economic rights—and “minority shareholders”—those who possess economic rights but lack control. The controlling shareholder, unable to receive more than their proportional share of the residual profits through dividends (the conventional means of profit allocation), is incentivized to extract private benefits from the company by means other than dividends. This dynamic forms the core of the agency problem between controlling and minority shareholders, as seen in countries like Korea and Japan. Can the issues arising in IPOs after split-off also be interpreted within this agency problem framework? When the controlling shareholder splits off the company and subsequently lists the subsidiary, the controlling shareholder does not directly appropriate the company’s residual profits for private gain. Nonetheless, in this process, the controlling shareholder becomes “a person who still controls the company but holds even fewer economic rights than before.” This structural change enhances the controlling shareholder’s incentive to extract private benefits by means other than dividends, relative to their previous position. In essence, this is an agency problem that intensifies the conventional agnecy problem—a recursive agency problem. Because the recursive agency problem does not itself directly constitute an act of private appropriation of residual profits, it lies somewhat outside the analytical framework of the conventional agency problem, making its diagnosis more challenging. Nevertheless, even if direct private appropriation does not occur during IPOs after split-off, the process strengthens the potential for future private appropriation of economic interests, reflected in the decline of share prices that anticipate such changes. If the fundamental issue in IPOs after split-off is this recursive agency problem, how should regulation be designed to solve it? Unlike the conventional agency problem, where direct private appropriation of economic interest justifies direct regulation, regulating the recursive agency problem—rooted in negative expectations about future private appropriation—can be challenged on the grounds that “It will be sufficient to regulate agency problems in the future and there is no need for regulation at this stage.” There is some merit to this critique, and particular care must be taken with rule-centered regulatory approaches, such as outright banning split-offs or parent-subsidiary dual listings. Nevertheless, given that agency problems cannot be entirely eliminated, neglecting the recursive agency problem on the basis that it can be addressed at a later stage is not justifiable. It is therefore essential to regulate the recursive agency problem through a principles-based approach, requiring companies to thoroughly explain to shareholders why such actions are being taken and what shareholder return policies will be implemented to prevent future agency problems. A good example of this principles-based regulatory approach is the amendment to Article 12-8-7 of the Corporate Disclosure Forms Preparation Standards.