주식매수청구권에 관한 상법 개정론 - 상법 개정안의 내용 및 평가 -

Abstract

The Korean Commercial Act(KCA) grants dissenting shareholders the right to demand the repurchase of their shares if they oppose resolutions on certain matters that significantly affect their interests. This right is referred to as the dissenting shareholder's appraisal rights. Recently, the Ministry of Justice announced a legislative proposal regarding amendments to the KCA concerning appraisal rights. The proposed amendments aim to address systematic issues raised by academia and practitioners related to appraisal rights. According to current rules and precedents, if a dissenting shareholder requests the repurchase of shares from the corporation, a stock purchase agreement is automatically concluded and the legal relationship between the corporation and the dissenting shareholder changes from a collective relationship to a transactional relationship. In this legal relationship, the current judicial precedents, which places responsibility on the corporation until the dissenting shareholder receives the stock purchase price, is appropriate and proper from the perspective of protecting the interests of dissenting shareholders. However, it was necessary to establish legislative policies that do not compromise the efficiency of corporate activities from the viewpoint of protecting the interests of dissenting shareholders if delays occur due to opportunistic actions by dissenting shareholders during organizational restructuring. For this reason, the proposed amendments include the following provisions related to appraisal rights, and these provisions are expected to significantly contribute to improving appraisal rights system in the KCA: 1. In the case of a shareholder exercising appraisal rights, the proposed amendments require the specification of the purchase price along with the basis for calculation and ensure shareholders' right to inspect documents related to the specified amount. 2. Unlike foreign legislative examples that separate the effectiveness of stock purchases from the payment of the purchase price, the proposed amendments regulate that the effectiveness of stock purchases is contingent on the full payment and deposit of the specified amount, combining or linking the effectiveness of stock purchases with the payment of the purchase price until the effective date. 3. A new provision is introduced to the KCA, allowing exceptions to partial deposit. This provision aims to reasonably address issues arising from delays in negotiating the purchase price, enabling the corporation to avoid liability for delays in addition to promoting the interests of dissenting shareholders through early payment of the purchase price. 4. To achieve uniform application of legal principles regarding appraisal rights for restricted transfer shares and controlling shareholders' sale demands, or minority shareholders' purchase demands, the proposed amendments either establish or modify provisions to regulate dissenting shareholders' appraisal rights with similar content. However, recognizing the essentially individual and transactional nature of these legal relationships, the proposed amendments do not uniformly provide for the automatic effectiveness of stock purchases on the effective date, but rather maintain the existing legal principles that the transfer of shares occurs upon the payment of the purchase price.