상법상 주식매수청구 제도의 개정방향

Abstract

The Korean Commercial Code (KCC) stipulates four situations where a share purchase contract is executed by the will of either seller or buyer alone: appraisal remedy by dissenting shareholders; purchase of restricted shares by the corporation; purchase of remaining shares by dominating shareholders having 95%; minority shareholder’s sale of less than 5% shares to dominating shareholders. This paper sought to draw out rational directions for KCC reform by way of examining the similarities and differences of these typologies. First, the KCC needs to clearly address when the transfer of title is made. Without specific provision under the KCC, the Korean courts have resorted to traditional sale and purchase jurisprudence. Accordingly, a seller (or a shareholder) would not lose their title until the purchaser fully pays the trade amount. This would be reasonable for some cases like purchase of restricted stocks (which has little to do with corporate control or management). However, the traditional jurisprudence dose not go well with a situation with appraisal remedy. An appraisal remedy is processed where fundamental changes like mergers are adopted. In those proceedings, more uniform and consistent standard should be introduced. Like many other legislations in the US or Japan, the KCC should be revised that the dissenting shareholders would lose their titles once the fundamental change they are opposing comes into effect. In order to protect dissenting shareholders, though, the corporation should pay the amount what it thinks fair in advance. Second, the deposit to the courts by buyers should be widely allowed. All four types of share purchase contract abovementioned are executed without an agreement on the price between the parties. What if the buyer’s estimation is $5 per share while seller’s is $8? It would be reasonable for buyer to give seller undisputed amount (i.e. $5) and to discuss over the remaining amount in court procedure. However, the Korean courts have denied the validity of so-called ‘partial deposit.’ Therefore, if the shareholder reject receiving $5 above, the corporation cannot make partial deposit (i.e. $5 deposit) to the courts, thereby facing the burden of high interest rate. The KCC should be reformed to adopt partial deposit. Third, when introducing appraisal remedy to split-off under the KCC, the question arises about the scope of introduction – should the appraisal remedy be applicable to small-scale splits? Compared to other small-scale fundamental changes (e.g. short-form merger), one cannot find a reason to deny the concept of small-scale splits. In terms of split-off, the KCC should be revised that the appraisal remedy would be applicable as long as the size of business separated from split entity is quite sizable.