반대주주의 주식매수청구권 행사시 상장법인 주식의 매수가격결정에 관한 연구 － 자본시장법 및 상법상의 주식매수청구권과 대법원 2011.10.13. 자 2008마264 결정을 중심으로 －

Abstract

Appraisal rights provide dissenting shareholders the option to sell their all shares back to the corporation for fair value upon certain fundamental corporate changes. Among the various discussions regarding appraisal rights, some controversy has continued sharply about determining the fair value of the shares when the parties demand and petition the court to determine the fair value of the shares. In determining the fair value of unlisted shares, the Supreme Court of Korea held that when dissenting shareholders demand the court to determine the fair value of the unlisted shares, if there is the actual practices of the objective exchange value appropriately reflected normal trading with respect to the unlisted shares, the courts would consider the exchange value seen as the market price as the fair value of the unlisted shares; however, if there is no such actual practices, the courts would utilize various evaluation methods normally recognized as being about the evaluation of unlisted shares such as market value method, the net asset value method, earnings value method, and so on. As some controversy has continued sharply about determining the fair value of the shares, in October 2011 the Supreme Court of Korea determine (대법원 2011.10.13. 자 2008마264 결정) first Supreme Court case in which dissenting shareholders of a listed corporation demanded the court to determine the fair value of the listed shares. In this case, the Supreme Court held that when the parties demand and petition the court to determine the fair value of the listed shares after dissenting shareholders of a listed corporation exercised appraisal rights, the court, in principle, shall determine the fair value of the listed shares with reference to the market price. This Supreme Court’s opinion has evoked various controversial views. Especially, some commentators has criticized that in order to determine the fair price of the listed shares, the courts must consider all the elements such as market value method, the net asset value method, earnings value method, and so on, because pure market price alone can not determine the purchase price of publicly traded shares due to the practical limitations of the stock market. This article focuses on discussing whether the courts base solely on the market price, or the courts must consider all the elements such as market value method, the net asset value method, earnings value method, and so on when determining the fair value of the listed shares. In detail, part II reviews detail facts and holdings of the Supreme Court’s case(2011.10.13. 자 2008마264 결정). Part III addresses statutes and regulations regarding appraisal rights, and the cases of the Supreme Court about determining the fair value of the unlisted shares for the reference in determining the fair value of the listed shares. Part IV reviews how to determine the fair value of the shares in the United States for the comparative legal study. Part V, discusses various controversial views which has criticised the Supreme Court’s holding that the fair value of the listed shares shall be determined with reference to the market price. Lastly, as a conclusion, proposes that the court, in principle, shall determine the fair value of the listed shares with reference to the market price.