상법상 조직변경과 반대주주의 주식매수청구권 － 법원에 의한 공정한 가액산정과 관련하여 －

Abstract

Commercial law allows dissenting shareholders appraisal right to sell his or her shares back to the corporation at a “fair value” in the event that a fundamental change occurs in the corporation. Since this legal activity has a significant effect on the corporate structure and its shareholders, disposal of its shares can cause a conflict of interests among shareholders. Corporate transformation requires special resolution at shareholders' meeting, and shareholders who consent or dissent the agenda are likely to have different interests. In the Korean commercial law, dissenting shareholders have appraisal right in the case of corporate transformation or amendment of articles. When the dissenting shareholders ask the company to buy his or her shares, the company talks with them over the price and buys the shares at a fair value. To exercise the right, the dissenting shareholders must give a written notice before the shareholders' meeting except small scale of merger and share trading. They can also dissent in person at the meeting. Not only those who have voting rights in the meeting but also those who don't are allowed the dissenters' right, which is a common view in Korea. The appraisal right is becoming more important because it serves to check special resolution at the shareholders's meeting. The right can be viewed to provide fair profit between major and miner shareholders. The law says the company should buy the shares at a fair value if the company and dissenting shareholders don't have agreement on the value, and so there are arguments over how the fair value is determined, regarding which the court position is not clear. Although there are different opinions over whether the dissenter's right should be allowed in the law or not: some argue the right is necessary and others don't agree with that, I would rather say it is necessary in the consideration that the big reason the right is allowed is to protect minor shareholders from major shareholders.