지배주주 관여 축출거래의 공정성 - 델라웨어주 판례를 중심으로 - = Controlling Shareholder Transactions and Fairness - Focusing on Delaware cases -

다국어 초록 (Multilingual Abstract)

The revision of the Commercial Act in 2011 introduced a compulsory purchase system for minority shareholders' stocks by controlling shareholders and at the same time introduced a grant merger system, which allowed useful methods to be used to oust minority shareholders. Although the new regulations introduced in the Commercial Act are diversifying the systems that can be used for ouster and their remedies, the question that continues from the past is what factors should be focused on when judging the fairness of the ouster-related transactions in which controlling shareholders are involved in the form of their own transactions.
When a controller is self-interested in a transaction—that is, the transaction is between the company and the controller or is between the company and a third party but the controller has an interest in it that differs from that of the other stockholders—the board’s independent judgment as to whether the transaction is in the best interests of the company and the other stockholders is viewed as inherently affected (and potentially undermined) due to the ability of a controller to remove the directors and elect new ones. When a minority stockholder with significant influence is self-interested in a proposed transaction, the issue is whether the stockholder, notwithstanding its non-majority equity stake, is a controller with respect to the transaction—that is, at the pleading stage of litigation challenging the transaction, whether it is reasonably conceivable that the stockholder had and exercised a degree of influence over the board that compromised the board’s independence when it considered the transaction.
In this article, we intend to provide useful data for our related discussion by analyzing this way of thinking, focusing on major precedents, which is thought to be the basis of the Delaware court's thinking. The purpose of this study is to categorize the characteristics of various transaction schemes used in ouster transactions according to the structure of the transaction or the pattern of the conflict of interest, and to analyze the court's attitude toward each. In the discipline of ouster transactions under our law, it is not believed that the criteria for examination by the court are sufficiently clarified at this time. For this reason, I think the Delaware court's position introduced in this article can be a positive implication for related discussions in Korea.