In general, the mandatory characteristics of corporate law have been emphasized in Korea: because many shareholders, creditors, workers as well as local community would be influenced by the performance of a corporation, many Korean scholars argue, a corporation is subject to stable and predictable regulation. As opposed to 'private civil law', the articles stipulated in an 'organizational law' like corporate law should not be easily replaced by stakeholders' agreement and should be construed in a conservative way, they added. When it comes to a merger agreement between two corporations which would bring in critical influence on all stakeholders, any clause that provides flexibility has been cautiously dealt with: especially the amount of consideration to be given to shareholders in merged corporation has been thought to be necessarily specified in a merger agreement before the approval of shareholders' meeting. It is true that the amount of consideration to be given to shareholders is one of the most important parts of a merger agreement. However, for various reasons, this paper suggest that some flexibility in deciding the amount of consideration should be given to merger agreement: parties in a merger agreement often need some device to reflect price fluctuation after the execution and approval of merger agreement; it is unclear why merger agreement should be treated so differently from general sale and purchase agreement (e.g. sale of asset agreement); and a merger agreement can provides some formula to decide the amount of consideration thereby avoiding discretion of directors.
Further, this paper proceeds with the abandonment of merger agreement. It is often discussed in Korean legal practice whether the board of directors can abandon a merger agreement that has already been approved by shareholders' meeting. Some argue the board of directors should call for a shareholders' meeting in order to cancel the merger agreement. But the board of directors may abandon a merger agreement even without shareholders' meeting, I think, because: unlike the completion of merger transaction, the abandonment of merger agreement does not end existing fiduciary relationship between directors and shareholders; and termination of merger agreement, if possible, need to be dealt by the same doctrine as applied to general corporate transaction like asset transfer of which the board of directors is responsible.