삼각조직재편제도의 도입과정상 쟁점과 입법론적 과제 = [Articles] : Legal Issues in the Introductory course of Triangular Reorganizations and Legislative Recommendations

다국어 초록 (Multilingual Abstract)

The triangular reorganizations such as triangular share exchange, triangular split-merger and reverse triangular merger were introduced in the Commercial Act November 12, 2015. This introduction has a meaning of enlarging the exceptions to the capital maintenance rule as a fundamental normative principle strictly maintained and respected under the conventional company law system, and would be regarded as a legislative determination for enhancing the domestic corporate competitiveness. Nevertheless, the newly introduced triangular reorganizations have some problems such as the practical less-effectiveness and interpretational gaps, no-permission of sale of all of the assets economically similar to the merger, no-legislature of legal infrastructure for the cross-border triangular reorganizations etc,. They all are fundamental legal issues to be solved by way of additional legislation as well as reasonable interpretations in that they are closely related to national economic importance in the future. In this paper some issues discussed in the legislative course of triangular reorganizations are summarized on basis of materials for the revision committee. And for maximizing the practical effectiveness of the triangular reorganizations in the future, some reasonable legislative recommendations are suggested in the essential problems in relation to the acquisition of parent company shares by a subsidiary company with a problem of the payment of consideration, parent`s shareholder protection in issuing new shares, fairness tests in the appraisal of consideration, a new introduction of stock-for-asset exchange type of triangular reorganization and legal infrastructure for the cross-border triangular reorganizations, in which most of the problems are analysed and reviewed in comparative perspectives.