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기업조직재편제도에 관한 비교법적 연구- 미국법제를 중심으로 -
윤은경 부산대학교 법학연구소 2020 법학연구 Vol.61 No.2
A merger in the U.S. Corporate law is a transaction whereby two or more corporations are combined into one of the corporations, referred to as the surviving corporation. When the merger is effected, the legal existence of all constituent corporations, other than the surviving corporation, ceases. By operation of law, the surviving corporation assumes the assets and liabilities of both constituent corporations, and the outstanding shares of stock in the disappearing corporations are canceled. Shareholders of the disappearing company receive shares of the surviving corporation in exchange for their disappearing shares. However, the consideration may be cash or other securities as specified by the planners in the merger agreement, flexibility that leads to triangular merger, which transfers the merger consideration{the shares of the parent(A) of the acquiring company(S)} to T(the acquired company or target company) through S(a wholly owned subsidiary corporation of A). There are two forms of triangular mergers. In a forward triangular merger, T merges into S. In a reverse triangular merger, S merges into T. The strong incentive to preserve the liability shield of A through S, and to eliminate the voting and appraisal rights that the shareholders of A would otherwise have are the principal reason to be more used than a compulsory share exchanges in the U.S. corporate section. As noted, a compulsory share exchange, like a reverse triangular merger, permits one corporation to acquire all the shares of another while leaving the acquired corporation in existence. The consideration of compulsory share exchange may be cash or other securities, which leads to triangular compulsory share exchanges. The Korean Commercial Code (the “KCC”) introduced only the forward triangular merger in 2011 and the forward triangular share exchange in 2015. However, in so far as the KCC accepted the increasing flexibility of merger considerations and share exchanges, the KCC should be amended to introduce the reverse triangular merger in order to facilitate the corporate reorganization. On the other hand, from a corporate governance perspective, the elimination of voting and appraisal rights of A would be criticised to be unfair, although A is the true party in interest with respect to the reverse triangular merger. Therefore, to address such concern, the adequate remedies against the elimination of voting and appraisal rights of A should also be introduced with the reverse triangular merger.
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송종준(Song, Jong Joon) 한국법학원 2016 저스티스 Vol.- No.152
삼각주식교환 등 삼각조직재편제도의 도입을 골자로 하는 상법개정안이 2015년 11월 12일 국회에서 통과되었다. 삼각주식교환제도는 모회사가 대상회사를 인수하는 실질적인 주체이면서도 주주총회 결의를 거치거나 소수주주들의 주식매수청구권 행사로 인한 자금부담을 우려할 필요가 없고 대상회사 주주에게는 과세이연이 허용되는 등 여러 가지 법적, 경제적 효용을 갖고 있다. 삼각주식교환제도에는 일반적인 포괄적 주식교환의 절차가 적용되지만 그 절차운용상으로는 몇 가지 해석론적, 입법론적 쟁점이 있다. 첫째, 상법상 회사 간 포괄적 주식교환계약에 의하지 아니하고 주주와의 개별적인 주식교환을 통하여 삼각주식교환의 목적을 달성하고자 하는 경우에 자회사가 모회사주식을 취득할 수 있는지, 둘째, 인수모회사가 대상회사의 주주에게 교환대가로서 신주 또는 자기주식을 직접 발행하거나 교부할 수 있는지, 셋째, 자회사가 언제부터 모회사로부터 신주를 인수할 수 있는지 그리고 모회사로부터 취득한 모회사주식을 공모절차에 따라 교부하여야 하는지, 넷째, 모회사가 상장회사인 경우에 공정한 주식교환비율의 산정기준이란 무엇인지, 다섯째, 인수모회사가 외국회사인 경우에 국내 자회사가 외국의 모회사 주식을 취득할 수 있는지 그리고 모회사에 관한 정보, 교환대가인 모회사주식의 가치산정과 환가 등에 관한 공시의 필요성은 없는지 등이 그것이다. 이 논문에서는 위의 쟁점들을 중심으로 바람직한 해석방향을 제시하고 입법론적 과제를 검토하였다. The revised Bill of Commercial Act, which focuses mainly on the introduction of the Triangular Share Exchange, was passed by the National Assembly in November 12, 2015. The share exchange has important legal and economic advantages in that acquiring parent company does not have to call the general shareholders meeting for approval of the exchange agreement, and be concerned about the appraisal right by the minority shareholders. The tax for dividend on the exchanged parent"s stocks to the target"s shareholders would be deferred. All of the procedures for the conventional share exchange stated in the current commercial act are applied to the triangular share exchange, however, some practical issues in carrying out the exchange would be raised as follows : First, can the subsidiary company acquire the parent"s stock in case where subsidiary"s shareholders try to accomplish the triangular share exchange by way of individual share exchange agreement between the subsidiary and target shareholders without entering into the compulsory share agreement between the subsidiary and target, which is only permitted by the commercial act? Second, can the acquiring parent issue new shares or deliver the parent"s own shares directly to the target"s shareholders? Third, From when can the subsidiary acquire the parent"s shares and whether or not the subsidiary should exchange the acquired shares necessarily subject to the regulated public offering procedures in the Capital Market Act? Fourth, what is the fair exchange ratio under the Capital Market Act in case where the acquiring parent is a listed company? Fifth, can the domestic subsidiary acquire the shares of the parent company located in foreign countries? and are current disclosure regulations on the material information about the acquiring parent and its stock value appraisal satisfactory for protecting domestic shareholders in the cross-border triangular share exchange? etc. In this paper, the above-mentioned key issues are thoroughly analysed and criticized in perspective of the relating legal principles of the commercial act and also some recommendations for the future legislation are suggested.
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고재종 한국기업법학회 2001 企業法硏究 Vol.8 No.-
By America's MBCA §11.02, Share Exchange means that one corporation can own on the whole share of the other corporation by inclusive share exchange. This share exchange is introduced in 2001's amendment of Korea's Commercial Code. The aim of introducing Share Exchange is to support restructuring business forms by making the incorporation of holding company easy. That is to say, trough Share exchange, the corporation established becomes the perfect parent corporation Share Exchange should be taken steps the following process. First of all, the plan of share exchange is to draw up and is to be approved by each voting group entitled to vote separately on the plan by 2/3 or more of the attending votes entitled to be cast on the plan and 1/3 or more of the total number of votes to be given attend the shareholders' meeting. Second, the shareholders against share exchange have a right to sell their shares to the perfected parent corporation. Third, the perfect parent corporation must be serve the new shares or the existing shares on the perfect subsidiary corporation. In addition to the above process, the other formalities relating Share Exchange should be carried out by legal provisions. However, for the sake of the shareholders' protection, we have to study on the problems of the value estimate and the various systems of relating corporation. Also, it is desired that we should study on the share Exchange for the formulation of imperfect parent-subsidiary corporation.
KCI
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