삼각조직재편

Abstract

In the year of 2011, Korean Commercial Code(KCC) was revised. Through this revision, the triangular merger was newly introduced in KCC. The Korean Ministry of Justice tries now to complete the codification onto the triangular reorganisation by adding further sections for the triangualr share exchange and triangular split-off. It is nowadays easy to observe the regulation on the triangular reorganisation abroad. The Delaware General Corporation Act permits the triangular merger. The revised Model Business Corporation Act does permit not only triangular merger, but also the triangular share exchange. The japanese Company Act 2006 permits all types of triangular reorganisation. The triangular reorganisation became nowadays important legal tool in the field of cross-border M&A. There are already lots of cases abroad. It was a big event in the international finance sector to observe the triangular share exchange and the following merger between the american Citi-Group and the japanese Nikko-Cordial. The British Petroleum and the american Amoco were also the famous partners in their reverse triangular merger. The Kyocera-AVX case in the year of 1990 played also an important role to establish milestones for a further cross-border M&A between the two nations, US and Japan. The legal problems surrounding triangular reorganization come mainly from discrepancy between the formal and substantial legal structure. The first main issue is, how the subsidiary gets the stocks of parent for the purpose of further delivery to the target’s shareholders. It became frequent for the company lawyers in Korea to discuss on whether the acquiring parent can deliver its own stocks or issue new stocks directly to shareholders of target company. The second one is, whether the shareholders of acquiring parent can enjoy standings in a litigation to render the merger void. The third one is to enlarge the scope of disclosure on the foreign acquiring parent for shareholders of a domestic target.