株式大量取得의 企業合倂·買受 (M&A) 에 對한 法的規制硏究 : 商法과 證券去來法을 中心으로 = (A) Study on the Legal Regulation of M&A in Forms of the Block Acquisition of Stocks : Focused on the Commercial Law and the Securities Exchanges Law

다국어 초록 (Multilingual Abstract)

M&A(Merger and Acquisition)can be defined in many different ways, but shall be defined herein as the whole of the dealings done to acquire managing power over enterprises. This definition includes merger, acquisition of assets(take-over of business), and acquisition of stocks. All these types are commonly to acquire enterprises for countervalue.
Therefore, M&A herein is called acquisition of enterprises(takeover of enterprises). On the other hand, M a A is understood as a combination of merger and acquisition.
M&A as defined above is used to rationalize management, to expand sales networks, to diversify markets, and to enlarge enterprises themselves and their productivity. While, M&A is also used as an industrial policy to rationalize industires. M&A developer form MaA between domestic enterprises and foreign enterprises.
Since 1985 the U.S. has witnessed 4 periods of M&A booms done for the purpose of expanding enterprises and diversifying management. The U.K. has also experienced a number of M&A's since 1980. In neighboring Japan, M&A has recently been widely used in parallel with increasing economic volume and doubled foreign investment. In 1989 alone, Japan has 240 cases of M&A between domestic enterprises, 404 M&A of foreign enterprises into domestic enterprises, and 15 M&A's of domestic enterprises into foreign enterprises. In the EC, France uses M&A widely second to the U.K. The prospects are that M&A will be more widely used after the intergrated European Community actually comes into being in 1993. In Korea, M&A is performed between domestic enterprises as a part of industrial policy to strengthen subsidiary companies, to establish parent and subsidiary relationship between companies, to merge subsidiary companies, and to merge insolvent enterprises, etc. But, Korea has had almost no M&A's definition in the Securities Exchange Law, nor such M&A's mediated by financial company as seen in the U.S. and Japan. Nevertheless, Korea has grown in its economic volume and foreign investment. Thus it is required that by occupying foreign markets we should secure raw materials, induce advanced technology, secure cheap labor, and diversify management. There have been about 20 M&A's of foreign enterprises into Korean enterprises from 1986 to 1990. We hered that Sammi Group Oriental Group, Ssang Young Group, Korea Explosive Group, Pohang Iron & Steel Co., Ltd., Daewoo Heavy Industries Ltd. are trying to merge foreign enterprises.
And it is highly probable that foreign enterprises easily merge Korean enterprises when the Korean capital market is completely open to foreigners next year. To this trend, the Ministry of Finance has given licences of M&A agency to Daishin Securities Co., Ltd., Hyundai Securities Co., Ltd.,
First Securities Co., Ltd., Hanshin Securities Co., Ltd., and Daewoo Securities Co., Ltd.
M&A is defined in different ways as explained above. Of them the most favored form is the one in which one company buys stocks in great quantities and then merger the target company. Accordingly, to purchase stocks in large quantities is an easy way of merging enterprises. Purchasing stocks in great quantities is done as follow: In case of the enterprise not listed on the Korea Stock Exchange, one company acquires stocks of the target company by individual and mutual agreement between both parties, or by taking-over the new stocks alloted to third parties. In case of the listed enterprises, there are two ways in addition to the above mentioned methods: One is public ofter for stocks outside the security market, which is called tender offer, and the other is ass purchasing of stocks from the general stockholders at security market.
M&A is functioning very well in terms of company management and industrial policy. Thus, the legislative system should be sep up the ensure simple merger by the merging companies(purchaser of the controlling stocks). On the other hand, another legislative system should be prepared to protect the remaining minority stockholders of the company (the target company) whose management the merging company is pursuing. The reason why the remaining minority stockholders should be protected is that possible infringement on the remaining minority stockholders occurs as a result of the great alteration in company structure and management, such as the change in management and operational policy. Therefore, adjustment of interest is necessary among the merging companies, the merged company, and the minority stockholders in the merged company. This is the scop to be regulated by the companies' Law. In case of M&A where stocks are purchased in great quantities through tender offer or at security markets according to the securities Exchange Law, a moderate regulation is needed to maintain fair dealing of stocks and protct inbestment. This field is what the Securities Exchange Law should regulated. While, M&A has an intrinsic evil of suppressing fair competition through market monopoly. The evil is regulated by the Monopoly Regulations and Fair Trade Law. In addition, the Tax Law, the Foreign Trade Law, etc. Shall matter regarding M&A.
As seen herein above, legal matters regarding M&A and so widely spread that we should study our own legal system and supplement loopholes. In other words, our individual enterprises should advance into wide foreign markets to diversify management and increase productivity. It will put us in advantage for use to purchase foreign enterprises in foreign countries and convert them into our own local firms. For this reason, our legal system laying an obstacle to acquisition of foreign enterprises should be amended. It is also important to study foreign legal system of M&A.
At the same time, acquisition of domestic enterprises into foreign companies are well forecast on the occasion of the coming capital market opening.
Against this, we have to protect managing power of the Korean enterprises as well as their minority stockholders. So, our legal system should be checked and any insufficiencies should be supplemented. This research paper focuses on these points and provides a guide to legal regulation of M&A.
There are different types of M&A's as studied herein above. Typical of M&A's exercised to take over the managing power is acquisition of stocks in large quantities. Of the mass acquisitions of stocks, the most widely used type in Korea is transfer of the controlling stocks.
But, in foreign countries like the U.S. and the U.K., an open acquisition method is also used often. Accordingly, this paper studies legal regulation over mass acquisition of stocks as M&A, and limits the scope of research to the transfer of the controlling stocks and tender offer for stocks.
In this paper, legal regulation over transfer of the controlling stocks and tender offer for stocks shall be treated only in terms of the commercial Law(the companies' Law) and the securities Exchange Law. In the Companies' Law, regulation centers on matters of adjustment for conflict of interest between the controlling stockholders and minority stockholders. The conflict of interest can firstly develop between the controlling stockholders(transfer) of the controlling stocks and the company(expecially, small stockholders), and secondly between minority stockholders of the target company and the controlling stockholders who acquired stocks in great quantities through transfer to the controlling stocks or tender offer for stocks. The reason why it should be reviewed in terms of the Securities Exchange Law is firstly that tender offer is a system of the Law, and secondly that according to the foreign countries' trend they thed to regulate transfer of the controlling stocks by invoking as tender offer system in the securities Exchange Law From this point of view, this paper sins at a way of protecting minority stockholders primarily within the Companies Law and the Securities Exchange Law by adjusting interests between the controlling stockholders and minority stockholders at block acquisition of stocks through transfer of the controlling stocks and tender offer for stocks. Therefore, this paper is written in the order and for the scope mentioned here under In Chapter 2, entitled Legal Regulation over Transfer or of the Controlling Stocks, firstly a matter of responsibility by the transfer of the controlling stocks is treated in the laws of the U.S. and Germany, where a matter of protecting minority stockholders shall be dealt with by adjusting interests between minority stockholders and the controlling stockholders(transfer or of the controlling stocks). Next, this paper reviews theories of protection for minorty stockholders and models of such legislation. In the part of Transfer of the Controlling Stocks, an tender offer system is introduced, where equal opportunity for selling stocks is realized by forcing open acquisition upon the buyer. This wag conflicting interests are adjusted among the transfer or of the controlling stocks, the tranferee(the controlling stockholders) and the remaining minority stockholders of the target company in a way to protect minority stockholders.
In Chapter 3, 4 entitled transactions of Purchaser of the controlling Stocks through tender offer and Transfer of the controlling Stocks through tender offer and Transfer of the controlling stocks and Protection of minority stockholders, the motive and meaning of tender offer and method of protecting the remaining minoray stock-holders of the target company by expanding the scope tender offer system are studied in comparative legislation approach. After then, matters of protecting the remaining minority stockholders are reviewed in the comparative legislation method in terms of interest adjustment toward purchasers of the controlling stocks, because the remaining minority stockholders are subject to possible infringement upon their interest through the transactions of the purchaer of the controlling stocks such as merge and second tender offer.
In Chapter 5, entitled Interpretation and Legislation of the Commerical Law and the Securities Exchange Law, the laws are reviewed for any deficiencies and loopholes in a constructional approach against the foreign laws, which were reviewed in Chapters 2 and 3. After that comes the direction of desired legislation. This chapter draws the conclusion of this research.

목차 (Table of Contents)

• 目次 = 1
• 第1章 序論 = 5
• 第1節 企業合竝. 買受(M&A)의 槪念 = 5
• 第2節 M&A의 類型과 規制 形態 = 8
• 第3節 硏究의 目的 = 9
• 第4節 硏究의 範圍 = 10
• 第2章 支配株式의 讓渡에 관한 法的 規制 = 13
• 第1節 序 = 13
• 第2節 美國法에 있어서의 規制 = 15
• Ⅰ. 序 = 15
• Ⅱ. 州會社法의 規制 = 16
• Ⅲ. 聯邦法의 規制 = 26
• Ⅳ. 株式賣却의 機會平等理論으로의 發展 = 32
• 第3節 獨逸法에 있어서의 規制 = 40
• 第4節 英國에 있어서의 規制 = 43
• 第5節 EC 會社法 등의 規制 = 46
• 第3章 公開買受와 支配株式讓渡에 의한 支配株式取得者의 行爲와殘存少數派 株主의 保護 = 53
• 第1節 序論 = 53
• Ⅰ. 公開買受의 動機 = 53
• Ⅱ. 公開買受의 意義 = 54
• Ⅲ. 本章의 範圍 = 58
• 第2節 公開買受의 成立範圍(公開買受의 對象範圍)의 擴大 = 58
• Ⅰ. 序 = 58
• Ⅱ. 特別 買受 = 59
• Ⅲ. 公開市場內 買受 = 60
• Ⅳ. 私的 交涉去來 = 65
• Ⅴ. 結 言 ( 支配株式 讓渡에 의한 買受의 問題 ) = 68
• 第4章 支配株式取得者와 殘存少數派株主의 利害의 調整 ( 支配株式取得者의 保護와 殘存少數派株主의 保護 ) = 71
• 第1節 序 = 71
• 第2節 支配株式取得者의 保護 = 72
• Ⅰ. 公開買受者의 保護와 公開買受者의 强制買受權 = 72
• Ⅱ. 交付金 合倂( 現金合倂:Cash out Merger )의 適法性 = 78
• 第3節 殘存 少數派株主의 保護 = 90
• Ⅰ. 序 = 90
• Ⅱ. 英國의 殘存少數派株主의 保護 制度 = 91
• Ⅲ. 美國의 殘存少數派株主의 保護 制度 = 95
• Ⅳ. EC 會社法 제3指針과 獨逸株式法 = 126
• 第5章 結 論 ( 商法과 證券去來法의 解釋論과 立法論 ) = 137
• 第1節 序 = 137
• 第2節 支配株式의 讓渡에 대한 規制와 殘存 少數派株主의 保護 = 138
• Ⅰ. 序 = 138
• Ⅱ. 商法上의 解釋論 = 141
• Ⅲ. 證券去來法上의 解釋論 = 146
• Ⅳ. 商法上의 立法論 = 148
• Ⅴ. 證券去來法上의 立法論 = 149
• 第3節 公開買受와 支配株式의 讓渡에 의한 支配株式取得者와 殘存少數派 株主의 利害調整 = 151
• Ⅰ. 序 = 151
• Ⅱ. 商法上의 解釋論과 立法論 = 152
• [參考文獻] = 168
• [SUMMARY] = 176