株式會社 合倂의 公正性確保方案에 관한 硏究

Abstract

It has been pointed out that there are various legal issues arising out of corporate mergers. This thesis reviews and analyzes corporate mergers with emphasis on fairness of mergers. The concept of fairness has two aspects : fair dealing and fair price. This thesis is composed of major parts as follows : disclosure of information about the merger, shareholder approval of the merger, dissenter s right to obtain cash payment and rescission of the merger. As to disclosure of information about the merger, the Korean Commercial Code and the Securities Exchange Act have provisions regarding notice of shareholder meeting, proxy statement, and balance sheet of the merging and merged corporations. To make the disclosure scheme adequately function, the reports of the board of directors or the reports of independent accounting experts containing the merger terms should be enforced, with the result that shareholders can get the opportunity to know the merger terms which are essential for them to exercise their voting rights. The Korean Commercial Code requires shareholder approval for a merger. The merger contract, which is the object of shareholder approval, needs to contain all particulars affecting the shareholders interest. At the same time, statements in the merger contract must be true. It is suggested that the relevant parts of the Korean Commercial Code needs to be revised so that the contents of the merger contract may be more detailed, and inspection by an independent expert like C.P.A. may be introduced to assure the accuracy of relevant materials. Dissident shareholder s right to obtain cash payment from the corporation, so-called "appraisal right", is a mechanism suited to reconcile the need to allow the majority to pursue a merger to adapt their company to drastically changing environments, with the need to protect the minority against being involuntarily dragged along into the merger process. Rescission of a merger is a final remedy arising from unfairness of ratio or price. Unfairness of ratio or price is the most serious defect of the merger and no other remedies could be proper alternatives for the shareholders who suffer therefrom. However, as the method of rescission causes instability and inconvenience, it is suggested that a pre-merger injunctive relief should be introduced into the Korean Commercial Code. In practice, most mergers are carried out for the sake of the maximum profits by way of unfair ratio. Nevertheless, the protection of shareholders has been ignored by the voting machinery and has been treated even as meaningless because of the parent-subsidiary relationship of the corporations concerned. To solve these problems, suggestions mentioned above should be introduced into the Korean Commercial Code.