Abstract

Under the amendment of the Commercial Companies Code of 19.8.2011 new Article 503¹ § 2 of the KSH was added providing for the duty to have the assets of the acquired company or the assets of the companies merging by way of establishing a new company examined by a certified auditor when the acquiring company or the newly established company is a joint-stock company and at the same time all shareholders of the merging companies expressed their unanimous consent for exclusion of having the merger plan examined by the valuator pursuant to the provisions of Article 502-- 503 of the KSH (Article 503¹ §_1.3 of the KSH). The said duty was nonexistent in the original wording of the provision of Article 503¹ of the KSH introduced by the KSH amendment of 5.12.2008, which was coincidental with the present content of Article 503(1) § 1.3 of the KSH. It is still nonexistent only with respect to cross-border mergers (Article 516⁶ § 3 of the KSH). However, at present in the situation whereby the shareholders waive the application of the requirements of Article 502-- 503 of the KSH, the said duty shall operate automatically by virtue of law. One may wonder whether under the new legal state we really deal with liberalization of the_duty -- criticized by practice -- to have the merger plan examined by the business valuator referred to in Article 502-- 503 of the KSH, or -- because of unclear reference in Article 503¹ § 2 of the KSH to the provisions of Article 311-- 312¹ of the KSH, as well as the vague relation of the provision of Article 503¹ § 2 of the KSH to Article 497 § 1 and Article 516 § 7 of the KSH -- this liberalization is merely ostensible and the legislator offers the practice the situation of “falling out of the frying pan into the fire”. The following article provides an analysis of the legal issues outlined above.