반대주주의 주식매수청구권의 문제점

Abstract

According to the view of majority, the company has obligation to pay price of dissenting shares within 2 months after the appraisal right being exercised by dissenting shareholders. The obligation is based on cash payment, which is under no-fault liability without culpa compensatio. This is not reasonable, so it is better for company to consult the price of dissenting shares after the appraisal right being exercised. Under this understanding the company will be exempted from no-fault liability, when he has made timely preparation for payment of price of dissenting shares. In this connection I will suggest revision of commercial law article 374.2 as follows. “The company should pay the fair price of dissenting shares suggested by the company within 2 months after agreement between the company and shareholder not being made. When the price is paid, the shares are considered to be transferred to the company.”For the listed non-voting shares, appraisal right is permitted in express provision. For the non-listed non-voting shares major view permits the appraisal right. In case of non-listed and non-voting shares, it is somewhat questionable whether the appraisal right should be given to the shareholders, who do not attend shareholders’ meeting after submitting his opposing opinion about the fundamental corporate change such as a merger and a disposition of assets etc. In this connection it is better, to give appraisal right to non-listed and non-voting shareholders also by express provision in commercial law. Under the express provision of commercial law, it is not clear whether the appraisal right could be withdrawn or not. I think opposing shareholders could withdraw the appraisal right within 20 days after general meeting. The reason is because the opposing shareholders could express their consent in the general meeting, although they have submitted their opposing opinion before the meeting. However after 20 days from the general meeting opposing shareholders could not withdraw the appraisal right without consent of the company, because the company should bear excessive burden such as fund refunding and preparation of general meeting etc. In any case the opposing shareholders could not withdraw the appraisal right after they accept the payment of share price from the company. In this connection I will suggest the revision of commercial law article 372.2 (1) as follows. “The opposing shareholders could not withdraw the appraisal right without consent of the company after 20 days from the general meeting.”