삼성물산ㆍ제일모직 합병 관련 판결들에 대한 비판적 검토- 개정상법상 이사의 주주에 대한 충실의무의 논의를 겸하여 -

The 2015 merger between Samsung C&T and Cheil Industries, which has involved a decade-long legal dispute over the fairness of the merger ratio, starkly illustrates a fundamental problem in Korean corporate governance: the conflict of interest between controlling and minority shareholders in intra-group mergers. This paper critically analyzes this merger, focusing on the fact that multiple court rulings reached mutually contradictory conclusions regarding the core issue of the ‘fairness of the merger ratio.’ Despite the acknowledgment of the merger ratio’s unfairness and the resulting shareholder damages in the appraisal rights price determination case and the breach of trust case involving the National Pension Service, the fairness of the merger ratio was affirmed in numerous injunction cases, the lawsuit for nullification of the merger, and the criminal rulings against Samsung Group executives. This inconsistency among the rulings raises serious questions about the coherence of judicial decisions. This paper attributes the cause of this inconsistency to the fact that many rulings overlooked the structural conflicts of interest inherent in intra-group mergers and ignored the economic substance of the merger by adhering to the formalism that limits the counterparty of a director’s duty solely to the company. The 2025 amendment to Article 382-3 of the Korean Commercial Code (KCC) explicitly includes shareholders as beneficiaries of the director’s duty of loyalty and establishes the duty to protect the interests of all shareholders and the duty of equal treatment. This amendment opens the possibility not only for pursuing damages under KCC Article 401 when shareholders suffer direct losses due to an unfair merger ratio, but also for establishing criminal liability for occupational breach of trust. Furthermore, based on the contribution-in-kind theory regarding the nature of mergers, this study presents a logical structure that allows for the recognition of occupational breach of trust, independent of the newly introduced provision on the director's duty of loyalty to shareholders under the amended KCC. Furthermore, this paper proposes additional institutional improvements to substantiate shareholder protection during mergers. First, it proposes the complete abolition of the merger valuation formula under the Enforcement Decree of the Financial Investment Services and Capital Markets Act, which still applies to intra-group mergers. This aims to fundamentally prevent the contradiction where the regulation, contrary to its legislative intent, is abused as an indulgence for controlling shareholders. Second, it is necessary to ensure the objectivity and fairness of the merger ratio ex-ante by introducing a system of independent merger inspectors appointed by the court and mandating the prior disclosure of merger plans. Third, regarding related-party transactions such as intra-group mergers, this paper proposes adopting the “Entire Fairness” doctrine from Delaware case law, thereby shifting the burden of proof regarding the fairness of the transaction to the controlling shareholders or directors. As part of a phased approach toward this goal, the necessity of expanding the scope of “specially interested persons” under KCC Article 368(3) is raised first.