국가안보위협형 외국인 M&A의 규제에 관한 연구

Abstract

In 1997, the system that it was restricted for listed firms to possess large-scale stocks on the old Securities Exchange Law, was abolished, and from May, 1998, foreigners' ceiling on acquiring the stocks of domestic firms except some key industries was abolished entirely, so that foreign capitals' M&A on domestic firms was permitted generally. The reason is that this accepted the norm of OECD, in which our country participated in 1996, on the free capital movement between nations, and at the same time M&A was regarded as the means to achieve efficiently the corporate restructuring which was the immediate problem in the time of the foreign exchange crisis. In our corporate climate where, in comparison with foreign firms, the principle on the separation of ownership and management was not observed, and the internal management control was not executed properly by corporate governance, M&A was emphasized as the means for the external management control. In the hostile M&A of our country, after the acquisitor purchases confidentially large-scale stocks or the existing large stockholder gathers friendly stockholders, most try corporate acquisition without the open purchasing procedure. So, the fair game rule is not established, and so the attritive litigation war is usually expanded. It is also very insufficient to protect general investors in the process of M&A. In order that the hostile M&A can play the favorable function including efficient resource allocation, corporate governance improvement, and the management supervision on managers in our country, we should impose neutrality duty on the board of directors in principle, and so should activate the hostile corporate aquisition, but should eliminate the unnecessary legal limitations about just acts. Also, in order that the purchaser and the seller can perform M&A game fairly and equally, the supervision and report system about the acquisitor's stock purchasing process should be complemented. Also, general investors should participate in the process of hostile M&A, and so should play the role of judges, and should realize stockholders' values. Thus, the purpose of this study is to devise the measures for constraining the negative behaviors of the short-term speculative foreign capitals without hindering the inflow of sound foreign capitals which play the useful function to the development of domestic financial and real industry, and examine how our country will adjust appropriately the regulation on the purchaser and the regulation on the defender, and whether our country will cope with foreign capitals' M&A related to the national key industry protection and the national security. But, according to our economy's globalization tendency, such measures should not deviate largely from the current systems of major advanced countries or the international capital transaction criteria by OECD and WTO.