일본의 2011년 회사법 개정 중간시안에 관한 연구-지배주주에 의한 소수주식 전부취득제도 활용을 위한 모색-

Abstract

The Japanese Corporation Act (the “JCA”) was enacted in 2005, and there is much debate today on the Interim Proposal (the “Proposal”) made by the Ministry of Justice of Japan to amend the JCA. The core subjects of the discussion are (i) corporate governance and (ii) framework for the parentsubsidiary relationship regulation. As to the corporate governance issue, the Proposal being considered now include whether or not to introduce the compulsory outside director system,to revise the current auditor system in the corporation and to adopt a new audit and supervisory committee under the board of directors. Regarding the regulatory regime for parent-subsidiary companies, there is much attention on the multiple-derivative lawsuits. Meanwhile, in Korea, despite the amendments to the Korean Commercial Code (“KCC”) becoming effective on April, 15, 2012, there has not yet been an actual exercise of the newly adopted squeeze-out right by the majority shareholder (who must hold 95% or more of the shares in order to exercise this new right). There are some significant issues in relation to the squeeze-out under the KCC that must be resolved before this new right can be more widely utilized. First, the new KCC provisions call for the majority shareholder and the minority shareholders to negotiate the purchase price,and after failure of an agreement between them, the court must decide the fair price. However, the court procedure to decide the fair price of the shares owned by the minority shareholders may increase the shareholder management cost if the court decision takes time, which is against the original purpose of legislation which is based on the effective management of the corporation. Second, the KCC requires a squeeze-out to have a proper business purpose, but it is not clear whether the intention of the majority shareholder to acquire 100% ownership of the subsidiary alone constitutes a proper business purpose. This paper examines the recent discussion on the possible amendments to the JCA contained in the Proposal and examines how the Japanese debate can become an additional context and ground for further reform in relation to the squeeze-out right in Korea.