주식매수청구권과 시너지－ 독일법의 상황을 중심으로 －

Abstract

It is nowadays easy for every civilized country to see the appraisal proceeding in the aftermath of dissenters' exercising their shareholder rights. The company lawyers in Korea do not hear yet the result on the long lasting appraisal proceeding following the famous merger between the Samsung C&T and Cheil Industries in the year of 2015. The author tried in this article in especially to present the legal situation in Germany. At first he goes onto the famous cases from the German Constitutional Court in Karlsruhe and the cases from the German Federal Court also located in Karlsruhe, Germany. The former released the famous Feldmühle (in English : ‘field mill’) Case in the year of 1962, proclaiming the basic “principle of full compensation” for the minority shareholders. The same Court released 1999 in the case of DAT/Altana the principle of market price for the listed stocks. In the meantime the German Federal Court proclaimed 1998 in the ABB Case the “stand-alone-principle”, that is to say that the valuation of stocks should take place only in the sphere of the target company without any consideration of the synergy effect from the acquiror. But suddenly came a considerable deviation from this principle in 2001. The German Federal Court released new principle for valuing listed stocks, permitting the partial consideration of synergistic value. The concept of ‘synergy effect’ is divided in Germany since long into two parts, the ‘synergy effect in original meaning’(= ‘echte Verbundeffekte’) and the ‘synergy effect in deformed meaning’ (=‘unechte Verbundeffekte’). The Court was willing to reflect the latter for the valuation of minority shares of Deutsch-Atlantische Telegraphen Gesellschaft (DAT). He goes further onto the situation in Germany surrounding the legal tool of appraisal right (Barabfindung). There can be seen a variety of triggering events in Germany. The German Stock Corporation Act provides three triggering events for the minority shareholders in the event of contract of domination or profit sharing(s. 305), in the event of contract of integration(s. 320b) and in the event of resolution of shareholder meeting for squeeze-out(s. 327b). The German Corporate Restructuring Act gives also some possible paths for minority shareholders, who are willing to exit the company in the wake of reorganization by merger, by corporate division, by asset transfer or by transformation in legal form. He decribes furthermore the situation on the pro & contras in academia. The author points out at last the importance of collaboration between corporate and tax lawyers in oneside, and the collaboration between lawyers and accountants in other side. Nowadays the Merger and Acquisition is one of the pivotal tool for revitalisation of local economy in Korea. The government is willing to vitalize the corporate reorganization through deregulation. The relationship between the appraisal right and synergy could gradually find shape through an effective collaboration between lawyers and accountants.