적대적 M&A의 방어수단에 관한 법적 연구

Abstract

Korea accepted code of free movement of capital between countries of the OECD. So, M&A by foreign capital were considered as a effective solution to economic problems and corporate restructuring. In 1997, Section 200 of Securities Exchange Act(section 147 of Capital Market Law) -Large stock holding limit system of listed companies- was abolished. And May 1998, Limit the acquisition of shares in foreign was abolished and M&A of foreign capital about domestic capital was allowed. Large-scale introduction of foreign capital was increasing the liquidity of the market through the stock market with abundant money supply and principles of corporate standards increased the efficiency of the stock market as a positive effect in domestic stock market. In addition, Stable flows of equity investment funds reduced the volatility of the stock market, company's financing costs has decreased effectively. Especially, Entering the domestic financial business of foreign capital has contributed to credibility of korean financial business and advancement of domestic finance laws and financial institution. On the other hand, foreign capial activated Hostile M&A by excessive foreign shareholding and brought various problems. Also, Response of domestic companies are becoming a problem. The current defence about M&A is consists of purchased for own shares by cash, large dividend that local money leaked abroad for foreign investors, cross-shareholding that defend each other by buying stocks with each other, and pyramid type. Especially, Hostile M&A due to dysfunction of foreign capital may be damaged Korea's economic growth potential. Because It leads to decrease of long-term investment to domestic companies. Therefore, To regulate large corporations, It should be improved from pre-regulation polarization relieve policy to subsequent enhanced relief policy. This is the direction of relieving that consistent with the constitution and corresponding measures about hostile M&A by foreign capital. Major korea corporations like the federation of Korean industries claimed the introduction of poison pill, dual class stock and korean exon-florio act for prevent to foreign captial's destructive M&A like Lonestar Fund in Texas. As a result, the threat of hostile M&A has several problems like gives corporate management stability and reduce supply functions in funds financial industry. For example, If the corporation that threatened to takeover because of a hostile M&A is not supplied effective - low cost defensive measures except acquisition of treasury stock or mutual investment, It will faced of criticism as a reverse-discrimination regulation that losts balance between attack and defense. Nevertheless, for reasons such as the terms of the liberalization of capital defense M&A legal opinion to oppose the adoption of differential voting shares and the introduction of a so-called poison pill legislation fails, Korean, and April 15, 2012, some revision of the Commercial Code came into force. Therefore, the discussion on whether takeover defenses also introduced legislation continues. Especially, Poison pill is a kind of defence mechanism. It has a little influence compared with other defence mechanisms and has advantages about time ensuring for judgement of share holders. If it introduced to commercial law, It will match to management efficiency of companies and global economy. Also, We should note about improvement of institution through the enlargement of a variety of financing techniques that being developed by the finance committee from 2011 and the revision of Capital market law related with defensive measures of hostile M&A. For listed companies, with the contingent capital instruments(reverse convertible bonds, etc.) which allow contingent capital securities ahead of the 2013 is performed Conditional Capital Securities ltd. Bonds as securities on the securities, including commercial law at the time of publication, depending on objective and reasonable criteria in case shares are converted into pre-specified reasons. In this paper, we will be discussed regulations and defensive measures of korean hostile M&A that relatively incomplete compared to developed countries through the balanced and advanced system of developed countries. Also, Improvement strategies of defensive measure about hostile M&A, reanalyzed debating the pros and cons of the introduction of defensive measure and defensive measure discussed in ministry of Justice. Researchers with the new government to promote economic democratization in the Act as part of the elimination of unfair trade practices, such as price manipulation by promoting capital market amendments to the law on the introduction of punitive damages based expansion and a variety of CSR takeover defenses, including the introduction of new ways to present defense were. Also, It has limitations that the introduction of Punitive damage. Because Korea's legal system is similar to the continental law and there is a possibility of unconstitutionality. Recently, The framework of resolution policy of polarization between major companies and minor companies is the protection of minor companies. In this regard, Behavior of major companies and own governance is regulated directly in advance. Evaluation indicators of companies for social responsibility(CSR) is being applied as important measure of company management evaluation. ISO presented international commercial transaction standard. In 2013, More than 10,000 companies use the guideline of ISO. In Korea, ISO guideline that reflected regulatory of shareholders and key indicators of CSR is considering monetary factors and non-monetary factors related to shareholders when a operator assesses the terms of the acquisition in the face of hostile. This seems useful for defensive measure of M&A. The introduction of voting trust to the hostile M&A is need to ongoing discussion in the range of South korea's business rule and so that is considered as a means of takeover defense. And also, Fundamental measures against hostile M&A is improving of corporate value through improvement of corporate governance and degrade the appeal arguments because of the increase in M&A costs. Corporations should check inefficient decision-making and maintain transparency of management using IR and CSR. It will be connected to improvement of continuous corporate value.

Key words: hostile M&A, poison pill, CSR, warrant, LBO, contingent capital instrument, Voting rights.