합병과 기업매수에 있어서 이사의 재량권에 관한 기준 : 미국 델라웨어주의 보통법을 기준으로 Centering on Common Law in Delaware State of America = The Test on the Discretion of Directors in Merger and Acquisition

다국어 초록 (Multilingual Abstract)

American Delaware courts have long grappled with the problem of how to preserve the directorial role as business policy-maker while reducing the scope of that role in contexts where directorial decision-making is subject to self-interest at the expense of shareholders. In particular, the Delaware Supreme Court has recognized that in the context of mergers and acquisitions, directors are regularly placed in certain situations with clearly defined risks to shareholders. Based on the long history of these situations, the Court has developed a series of tests, which, taken as a group, form a continuum of restrictions on board discretion proportional to the severity of risks posed to shareholders and the corporation. This continuum consists of the business judgment rule, the entire fairness test, the Unocal proportionality test and the Revlon duty to maximize share value in the short term.
The Business Judgment Rule is a specific application of directorial standard of conduct to the situation where a business decision is made by disinterested and independent directors on an informed basis and with a good faith belief that the decision will benefit the corporation. It is necessary to introduce business judgment rule in order to protect the progressive and original management of directors.
Also it is necessary to introduce Entire Fairness Test that provides substantial protection to the minority in connection with self-dealing of freeze-out merger. The entire fairness test requires a board of directors to comport with both standards of procedural fairness (fair dealing) and substantive fairness (fair price).
Also it is necessary to introduce Unocal Proportionality Test and Revlon Duty. According to Unocal Proportionality Test, a board must demonstrate that its fear of a hostile bidder is grounded in a reasonable determination that the bidder threatens current corporate policy. On the other hand, According to Revlon Duty, if the dissolution takes place as a result of a board decision to break up the corporation or as part of a merger that potentially eliminates the continued existence of the corporation's strategy, directors have a fiduciary duty to maximize shareholder value in the short term because their actions involve a sale of control and shareholders automatically enjoy a right to share in a control premium.

목차 (Table of Contents)

• Ⅰ. 서론
• Ⅱ. 합병에 관한 보통법상의 기준
• Ⅲ. 기업매수에 관한 보통법상의 기준
• Ⅳ. 결론