이사의 주주 이익 보호의무 관점에서의 합병 계약의 쟁점

As Article 382-3 of the Korean Commercial Code was revised and the duty of loyalty of the directors to protect the shareholders' interests was introduced, it is attracting the attention of the market and companies. These discussions on the introduction of the duty of loyalty to protect the shareholders’ interests were initially made in connection with the concern on the shareholders’ damage in the process of restructuring transactions, such as mergers of the listed companies, and the above amendment bill of the Korean Commercial Code itself specifies the above concern as a specific reason for the proposal. Therefore, there is no doubt that the merger of a stock company is the primary direct target of the duty of loyalty of the directors to protect the shareholders’ interests. However, in practice, the provisions of Article 382-3 of the Korean Commercial Code are quite abstract and extensive, so it is not clear which is at detailed issues in the actual decision-making process of the directors from the perspective of the above duty of royalty. Based thereon, this paper analyzes the requirements for the compliance with the duty of loyalty of the directors to protect the shareholders’ interests in the context of the merger. Basically, in the merger contract, securing the substantive legitimacy and procedural legitimacy of the merger is important for the compliance with the duty of loyalty of the directors to protect the shareholders’ interests. Regarding securing the substantive legitimacy of the merger contract, the business necessity of the merger contract and the appropriateness of the terms and conditions thereof should be conceded. Regarding the former, it is important to compare with the existence of positive profits such as business synergy through mergers and negative losses such as additional cost expenditure or financial burden caused by mergers. Regarding the latter, the appropriateness of the merger ratio and the merger considerations is important. Currently, in practice, a listed company’s stock price-based method, a method of reflecting a certain discount or premium on the stock price, a method of using asset value, and a method of reflecting control premiums based on the analysis of the peer company transactions are used. However, it is important to evaluate the fair value of the company by comprehensively taking into account asset value, profit value, and comparative value of the business considering the specifics of the industry and operations thereof Regarding securing the procedural legitimacy of the merger contract, it is important to faithfully implement the resolution of the board of directors, the execution of the merger contact and the disclosure thereof, the review of the backdoor listing requirement, the disclosure and review of the securities registration statement, the convocation and resolution of the general meeting of shareholders, the procedure for appraisal rights of dissenting shareholders, and the creditor protection procedure. In particular, the adoption of the special committee procedure and the resolution the majority of the minority shareholders considered in U.S. law, etc. are also at issue from the perspective of the duty of loyalty of the directors to protect the shareholders’ interests, and it is necessary to reasonably review whether these measures are possible from the perspective of the legal system under the Korean Commercial Code.