지배주주의 소수주식 매도청구에 따른 주식매매가액 산정기준- 대법원 2016. 12. 23.자 2016마1283 결정 -

Abstract

In the stock price test, the Commercial Act doesn't tell the minority shareholders' voluntary exit by the dissenting shareholder's appraisal right permitted in the corporate reorganizations like merger from the involuntary freeze-out by controlling shareholder's compulsory acquisition of minority shares. In this case, the courts made decision that the fair price test used in the calculation of stock price in the dissenting shareholder's appraisal right shall be also applied to the case of controlling shareholder' compulsory purchase. But, such judicial interpretation is quitely questionable in point of protecting the involuntarily frozen-out minority shareholders in consideration of fundamental concept of corporation law. In this comment, the author basically reviewed the principle of fair price test applied in the dissenters' appraisal right stated in the Act, practical fair price test of unlisted stocks and recent interpretational trends generally accepted in the courts in relation to the minority shareholder's freeze-out in the U.S, UK including Japan. In conclusion, the court's decision that minority's freeze-out would be reflected as an important factor of the price test is highly appreciated in principle. But in the following cases, future synergy value and interest in the lost control premium after the freeze-out of minority shareholders should be more actively considered in the same way as the global trends.