소수주주 축출 목적의 주식병합 - 대법원 2020. 11. 26. 선고 2018다283315 판결에 대한 평석을 겸하여 - = Squeeze Out of Minority Shareholders by Way of a Reverse Stock Split

다국어 초록 (Multilingual Abstract)

Unlike stock splits, the Commercial Act does not have general provisions on reverse stock splits, allows reverse stock splits, only in specific cases such as capital reduction. Due to this legislative attitude, it is controversial whether reverse stock splits is allowed for purposes other than those permitted by the Commercial Act, especially for the purpose of squeeze out of shareholders. Through the revision of the Commercial Act, controlling shareholders' rights to request sale (squeeze out, Article 360-24 of the Commercial Act), a general means for squeeze out of minority shareholders, was introduced. It is a subject of further debate, whether a squeeze out of shareholders through reverse stock splits despite the controlling shareholders' rights to request sale is allowed.
The Supreme Court 2020. 11. 26. Sentence 2018da283315 ruling is a precedent that directly dealt with squeeze out of shareholders through reverse stock splits. Under the premise that squeeze out through reverse stock splits is allowed, this precedent reviewed the reverse stock split based on the principle of equal treatment of shareholders, prohibition of abuse of rights and good faith, and fair compensation to shareholders who are expelled due to the occurrence of fractional shares in the reverse stock split process.
The Supreme Court held that even if the reverse stock split resulted in the squeeze out of shareholders, it was legal because it met the above mentioned criteria. It is difficult to agree with this conclusion for the following reasons.
First, the Supreme Court narrowly grasped the principle of equal treatment of shareholders, which performs an important function of protecting minority shareholders, only from the perspective of formal equality. The issue of substantive inequality, in which minority shareholders other than major shareholders lose their shareholder status as a result of the reverse stock split, was ignored.
Second, there is a remarkable imbalance between the company's interest of capital reduction through the reverse stock split and the minority shareholder's interest (the interest of maintaining shareholder position) that is infringed upon by the occurrence of fractional stocks due to the revers stock split. Since the main purpose of squeezing out minority shareholders rather than capital reduction is objectively recognized, the purpose of the company's offense can not be denied. Therefore, all the conditions for abuse of rights are met. An excessive reverse stock split ratio is also recognized as a violation of the duty of good faith, which requires consideration to minimize the infringement of shareholders' interests, unless there are special circumstances in the event of a reverse stock split.
Third, the procedure for dealing with fractional shares under the current Commercial Law does not guarantee fair compensation to the shareholders. Therefore, it is undesirable to allow the occurrence of fractional shares through reverse stock splits without restriction and to protect the interests of minority shareholders through ex post compensation in a state where fair compensation for fractional shares is not guaranteed.
Fourth, the squeeze out of minority shareholders should be allowed within a reasonable range only in exceptional cases recognized by the Commercial Act, and the controlling shareholders' rights to request sale introduced by the Commercial Act should be used for squeeze out except where expressly permitted by the Commercial Act. The squeeze out of minority shareholders through reverse stock splits for the purpose of circumventing these restrictions is not permitted in principle.
Fifth, in order for the squeeze out of minority shareholders through a reverse stock split to be exceptionally justified, there must be a business purpose, and the reverse stock split must be necessary, appropriate, and proportionate to achieve the business purpose.