축출합병에 있어서 소수주주의 보호에 관한 연구 -미국판례상 정당한 영업상의 목적-

김진철 ( Jin Cheol Kim ) 한국상사판례학회 2012 상사판례연구 Vol.25 No.4

In Singer v. Magnavox Co. case, the Delaware Supreme Court ruled that majority are holders of Delaware corporations violate a fiduciary duty to minority shareholders when they engineer a merger the sole purpose of which is to eliminate the minority shareholders from continued participation in the enterprise. In so holding, the court upset a longstanding trend in the Delaware law of corporate mergers and embarked on a new course of protection for minority shareholders involved in freezeout mergers. Prior to Singer case, the Delaware cases concerning the protections afforded to minority shareholders followed two conflicting lines. One protects the interests of the minority shareholders from abuse by the majority. The other ignores the same abuses when they occur in the context of a corporate merger. Singer effectively closes the gap between these two lines by extending the concept of a corporate fiduciary obligation to the merger context. Singer v. Magnavox Co. case reverses the earlier Delaware rule of judicial noninterference in corporate merger transactions. To protect minority shareholders, the court imposed a two-tier test. First, the majority must prove that a valid business purpose justifies the merger. Mergers that have a bona fide business purpose must meet a second requirement. The entire transaction will be scrutinized to ensure that minority shareholders are being treated fairly. If flexibly administered, the new Singer rules may go far in providing adequate relief for the victims of freezeout mergers. This note examines Singer, its antecedents and its possible application. It first compares Singer with prior Delaware law, concluding that the judicial involvement mandated by Singer represents a significant break with Delaware merger precedent. The purpose of this note is to carefully analyze the Delaware Supreme Court`s reasoning in Singer case and its implications. Part II examines a controversail point freezeout megers and minorty shareholders` protection. Part III examines history of fiduciary duty and proper business purpose, especially, in commom law and status laws. Part IV analyzes Singer case itself, presenting the facts, procedure, resoning of finding and significance. Finally, Part V suggestes proposal things in present situation of korea.

NP-split, Afterthought, and Counter-countercyclic Merger

Youngun Jang 한국언어학회 2005 언어 Vol.30 No.4

유엔 物品賣買法(CISG)에서의 契約의 解釋

최창렬 국제거래법학회 2012 國際去來法硏究 Vol.21 No.2

United Nations Convention on Contracts for the international Sale of Goods (CISG) (1980) has provides how to interpret parties’ statements and other conducts at a contract for the international sale of goods. In other words, Article 8, CISG sets out at Clause 1, subjective interpretation method subject to the parties’intention, and at Clause 2, objective interpretation method if the parties' intention is not unknown, and Clause 3, considerations in their intentional and objective interpretation method. Article 8, Clause 1, CISG provides the primary principle of contract interpretation that a contract should be interpreted according to the parties’intention, which is relevant to natural interpretation method. Even if the other party knew the party's intention as well did not know it due to gross negligence,the contract should be interpreted the party’s intention that should have been known. CISG does not applies the accepted parol evidence rule which eliminates an agreement prior of a final contract conclusion to get over the limit of the jury system in the Anglo-American law system, in which case any possible risk of evidence fabrication can clear up the parties' final intention through (Merger clause). Article 8, Clause 2, CISG provides the secondary principle of contract interpretation if the parties’ intention is not known that the contract should be objectively interpreted according to understanding that a reasonable person of the same kind as the other party would have had in the same circumstances based on the standpoint of the recipient's representation. The parties' subsequent act after contract conclusion is a consideration in judging understanding that a reasonable person of the same kind as the other party would have had in the same circumstances pursuant to Article 8, Clause 3, CISG. This prohibits any following act contradictory to preceding act, so if the subsequent act represents any changed intention, then it should be treated as the change of the contract. In the execution of a contract, if there is any flaw the parties did not think of,then contract interpretation is supplemented by the parties' presumptive intention,which is called the supplementary interpretation of a contract. PICC and PECL have provisions concerning the supplement of omitted provision about supplementary interpretation, while CISG does not specify any written provision,but it is a prevalent opinion that the supplementary interpretation is accepted. Standards of supplementary interpretation should comprehensively take into account the parties' intention, the characteristic and purpose of the contract,principle of good faith and fair trade, and custom and practice etc. In our legal system, the Civil Law does not sets out a first-hand interpretation provision about contract interpretation, in which CISG accepted as domestic law from 2005 year in regard to international transaction of goods has a statutory provision about that, so its correct perception will be able to clarify the content of international sales contract of goods, and contribute to prevention of any international trade disputes.

美國會社法上 株式買受請求權의 機能

李成雄 한국기업법학회 2001 企業法硏究 Vol.8 No.-

In the modern corporate law, appraisal remedy is one of the most important rights to protect minor shareholders in fundamental changes of a corporation. Korea has developed amendment of act for corporate reorganization or restructuring. Simultaneously, appraisal was expanded to other corporate changes, e.g. diversion merger, stock exchange and transfer. But it has not yet studied that appraisal actually accomplishes what kinds of function to shareholders as investors. In USA, the research for the function or role of the appraisal carve out several times. In USA, the specifics of appraisal differ from jurisdiction to jurisdiction, most state appraisal statutes share several basic features: they confer appraisal rights upon shareholders who object to transaction such as mergers and consolidations, sale of all or substantially all, the corporation's assets and serious charter amendments, such as those altering the purpose for which the corporation is organized; they define fair value as the value of the shares prior to giving effect to the transaction from which the shareholders dissent; and they include a market out that withdraws appraisal rights when the objectors' shares are publicly traded. Traditionally, commentators viewed appraisal rights as necessary to protect shareholders who object to fundamental changes from being forced to invest in new firms against their will. Bayless Manning, however, challenged this traditional view of appraisal, as a remedy necessary to protect shareholders from the effects of fundamental change. He argued that the traditional view of appraisal had to be flawed because appraisal statutes were not broad enough to achieve that goal. Several commentators have taken up Manning's challenge to explain appraisal rights, most notably Fischel, Kanda and Levmore, and Gilson. For the most part, these commentators have argued that appraisal remedy should be viewed as a check on misconduct by managers and controlling shareholders. But their efforts have fallen short for three principal reasons. First, each of more of the basic features of the appraisal remedy. Second, none explains the evolution of the appraisal remedy over time, particularly the introduction and expansion of the market out. Third, none of these theories carves out for appraisal a function that is distinct from that served by other corporate law remedies, such as the shareholder's action for breach of fiduciary duty. Recently, a new theory of appraisal was proposed by Letsou. This theory focuses on the capacity of appraisal rights to reconcile differing shareholder preferences. This new theory has a lot of merits in understanding for the various statutes in USA and behaviors of investment shareholders in the stock market. In value rule of the dissenters' stocks, this theory, however, inconsistent with Weinberger methods that did not conclude pre-transaction price but price with premium due to merger synergy. Despite of it's flaw, this new theory has current events in regard with appraisal's function in the stock market. It may be possible to view the future of appraisal through this new theory.