상법개정안상의 교부금합병에 대하여

• 영문명: Cash-Out Merger in the Amendment Bill of the Korean Commercial Code
• 발행기관: 경희법학연구소
• 저자명: 권기범(Kwon, Ki-Boum)
• 간행물 정보: 『경희법학』제42권 제2호, 145~169쪽, 전체 25쪽
• 주제분류: 법학 > 민법
• 파일형태: PDF
• 발행일자: 2007.06.30

영문 초록

This article examines the cash-out merger included in the amendment bill of the Korean Commercial Code. Chapter 1 c1arifies the differences concerning the merger-consideration between the law of the merger in the European Union and that in the United States. Several interpretational problems arising out of the amendment bill are also pointed out: the permissible type of cash-out merger, the permissible range of property as a merger-consideration, the possibility of com bination of share and other property including cash as a merger-consideration, the applicability of the equal treatment rule to the cash-out merger, the voting requirement of the shareholder approval, the treatment of merger synergy, legal measures to protect minority shareholders and so forth. Chapter 2 scrutinizes the permissible legal range of the merger-consideration other than the shares of the surviving corporation and brings out that any property will do good if it has economic value. lt is c1ear that the combination of share and other property is allowed as a merger-consideration. Chapter 3 deals with the problem: whether the voting requirement of the shareholder approval in the merging corporation should vary with the type of merger-consideration or not. It is argued that the voting requirement of the shareholder approval in the merging corporation should be changed upward, in some cases even to unanimous approval, when the proposed merger-consideration affects disadvantageously the shareholders of the merging corporation. Chapter 4 examines the permissible types of the cash-out merger in relation to the ’equal treatment of shareholders rule.’ It is argued that types 3 and 4 iIIustrated in the text should be prohibited. Chapter 5 analyzes the adequacy of the shareholder protection mechanism and briefly explains the relevant Delaware case law. Stress is put especially on the fair dealing principle of the Weinberger decision. In the last chapter the author concludes that the current cash-out merger provisions in the amendment bill are insufficient and therefore do require further exam ination before its enactment.

목차

1. 문제의 제기

II. 상법개정안상의 교부금합병의 성립범위

lll 상법개정안상의 교부금합병의 합병대가

lV. 합병대가와 해산회사 주주총회의 합병승인결의

V. 소수파주주 축출 교부금합병의 성립 범위와 소수파주주의 보호

Vl 결론

키워드

합병대가의 유연화 주식 대 비주식형의 합병 교부금합병 소수파주주축출 교부금합병 총체적 공정성 절차의 공정 가격의 공정 정당한 사업목적 liberalization of merger consideration stock for non-stock merger cash-out merger cash-out merger squeezing out minority shareholders entire fairness fair dealing fair price proper business purpose