完全持株會社의 設立 및 運用

• 영문명: Regulations on a Holding Company that Owns All Shares of Its Subsidiary
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 노혁준(Hyeok-Joon Rho)
• 간행물 정보: 『비교사법』비교사법 제11권 1호, 119~156쪽, 전체 38쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.03.01

영문 초록

Many Korean companies including LG Corp., and Pulmuone Corp. have transformed into a holding company structure and others are seriously considering the creation of a holding company, after the Korean Monopoly Regulation and Fair Trade Act permits the establishment of a pure holding company in 1999. The Act requires a holding company to own only 30%-50% shares of its subsidiary. Most of American or European holding companies, however, own all of subsidiaries' shares, so that they can control subsidiaries without any interference from minority shareholders. Recently, as the Korean courts emphasize rights of minority shareholders, many Korean companies are interested in a holding company that owns 100% of its subsidiary's share. If there are minor shareholders who are not willing to transfer their shares in a target company, an acquiring company should freeze out minority shareholders to take all of target company's share. Some foreign corporate laws have legal devices to achieve this goal. In Germany, provided that a holding company has 95% or more of its subsidiary's shares and shareholder's meetings of both holding company and its subsidiary approve Eingliederung, a holding company can freeze out minor shareholders under proper compensation. Under the Compusory Acquision in the United Kingdom, a holding company, who has successfully obtained 90% or more of target company's shares through tender offer, can obtain the rest of the shares at the same condition suggested in the tender offer. American corporations are able to take all of their subsidiaries' shares through Triangular Merger or Compulsory Share Exchange etc., as well. Under Korean corporate law, a company("A") who wants to obtain all shares of a target company("B") either directly or by establishing a new company, can use several methods : (i) the Comprehensive Share Exchange which was used in the creation of Dongwon Financial Holdings, and (ii) the mutual Comprehensive Share Transfer which was used in the creation of Shinhan Financial Holdings. If A is seriously concerned about hidden debts behind B, so called two-step transaction is available : First of all, B creates a new company fully owned by B, which succeeds major assets of B and Secondly, A takes over all shares of the new company from B. The possible devices under Korean corporate law, however, are very limited. Therefore, a revision on corporate law concerning holding company establishment, including introduction of Compusory Acquision in the U. K., should be considered. Researches into Corporate Group including holding companies in Korea have been focusing on fair competition issues. Now that many companies became holding companies, more researches on the operation of holding companies are required. Legal issues on the relationship between holding company and its subsidiaries and the conflict among interested parties in holding company or its subsidiaries are left unsolved. Especially, a relationship between a holding company and its subsidiary fully owned by a holding company has very unique aspect, considering the subsidiary, which is a legal entity, can be regarded as a department of the holding company in terms of economics. Minority shareholders of a holding company which owns all shares of its subsidiaries, in my opinion, should be allowed to bring a double derivative suit against directors of subsidiaries. Furthermore, the development of special theories or legislation on legal issues of holding companies, including whether a holding company has legal authority over its fully owned subsidiaries, is necessary.

목차

Ⅰ. 서론

Ⅱ. 완전지주회사의 설립

Ⅲ. 완전지주회사의 운용

Ⅳ. 결론

참고문헌

[Abstract]