상법 제369조 제3항에 따른 상호주 규제의 최근 쟁점

Article 369(3) of the Korean Commercial Act provides that “where a company, its parent company and subsidiary, or a subsidiary holds more than one-tenth of the total number of issued shares of another company, the shares of the company or the parent company held by such other company shall have no voting rights”, thereby regulating cross-shareholding relationships between companies that are not in a parent–subsidiary relationship. Although Article 369(3) is intended to prevent distortions of corporate control or distortions in shareholders’ meeting resolutions caused by cross-shareholdings, in practice it is also frequently used as a defensive measure against hostile takeovers. In a recent, highly publicized corporate control dispute, the management of the target company invoked the cross-shareholding restriction under Article 369(3). In that case, several novel issues arose that had not previously been addressed in prior academic literature or judicial precedents. First, the target company sought to restrict the voting rights of the acquiring company at its own shareholders’ meeting pursuant to Article 369(3) by acquiring more than 10% of the acquiring company’s issued shares, even though the acquiring company had been a shareholder of the target company as of the record date for the target company’s shareholders’ meeting. After the record date, however, the acquiring company transferred the target company’s shares it had held to a third party, so that by the date of the shareholders’ meeting the acquiring company no longer held any shares in the target company. The issue was whether, in such circumstances, the acquiring company’s voting rights could still be restricted under Article 369(3). The acquiring company would argue that, because it did not hold any shares in the target company on the date of the shareholders’ meeting the relevant point in time for determining a cross-shareholding it should not be subject to Article 369(3). However, in light of the legislative purpose of Article 369(3), this issue should be assessed based on whether the target company’s acquisition of the acquiring company’s shares creates a risk that the acquiring company may exercise distorted voting rights at the target company’s shareholders’ meeting as a result of a cross-shareholding relationship. Accordingly, even if the acquiring company transfers its shares in the target company to a third party after the record date so that a third party holds the target company’s shares on the date of the shareholders’ meeting, the voting rights attached to those shares are attributed to the acquiring company, which was the shareholder as of the record date. Because the acquiring company thus retains the potential to exercise distorted voting rights, Article 369(3) should apply in such a case to restrict the acquiring company’s voting rights. Second, an issue arose as to whether Article 369(3) applies when a subsidiary of the target company acquires more than 10% of the acquiring company’s shares, thereby forming a cross-shareholding, and that subsidiary is a foreign company. In a cross-shareholding situation, the subsidiary of the target company is merely one of the factual elements required under Article 369(3); it is neither a direct addressee of the provision nor directly affected by the legal consequences resulting from its application. This issue, therefore, is not so much a matter of private international law as it is a matter of statutory interpretation of Article 369(3). Even if the subsidiary that serves as the intermediary forming the cross-shareholding is a foreign company, this should not prevent the application of Article 369(3). Third, in applying Article 369(3), the “company”, “subsidiary”, “parent company”, and “other company” referred to in the provision must all be stock companies. When the subsidiary of the target company is a foreign company, the issue arises as to the degree of equivalence or similarity to a Korean stock company required for Article 369(3) to apply. In addressing this issue, it is necessary to take into account that, under Korean law, many entities formally organized as stock companies are in substance closer to partnerships or personal companies; that foreign company law recognizes a wide variety of corporate forms and terminology corresponding to Korean stock companies; and that the regulatory regimes governing stock companies differ significantly across jurisdictions. In light of these considerations, it is appropriate to apply a relatively flexible and relaxed standard in determining functional equivalence.