상법개정안상의 교부금합병에 대하여

Cash-Out Merger in the Amendment Bill of the Korean Commercial Code

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.