주식매수청구권과 시너지 ―미국 델라웨어법과 일본법의 비교를 중심으로―

Abstract

The author tried in this article to show the relationship between the dissenter’s appraisal right and the synergistic value. At first he shows some relevant cases from the State of Delaware and Japan. The Mills (Mills v. Electric Auto-Lite Co.) says “minority shareholders must be compensated not only for market value of their shares in old corporation, but also for shares of synergism generated by a merger that is proportionate to interest that those shares represented in combined premerger value of two old corporation.” The Weinberger and Technicolor say that “only the speculative elements of value that may arise from the ‘accomplishment or expectation’ of the merger are excluded [by calculating the ‘fair value’].” And then he tried further steps for comparing the both jurisdictions, that of the State of Delaware with that of the Japan, presenting thereby as its result, the importance of differentiation between the arm’s length transaction(ALT) and the related party transaction(RPT). He compares at first the section 262, subsection (h), sentence 2 of DGCL(Delaware General Corporation Law) with the section 785 subsection (1) of Japanese Company Act 2006. He finds there that the former excludes elements of value arising from the accomplishment or expectation of the merger, the latter in contrary permits it. He finds there also some trends of assimilation in both case law, in especially relating to the court's ruling on the statutory concept of 'fair value'. The merger price, which was agreed following the independent parties' negotiation through fair procedure, has been frequently treated in both jurisdiction as fair value. He concluded that the synergistic value from the corporate restructuring should be taken into account by calculating the ‘fair value’, especially when the reorganisation reveals itself as related-party-transaction like merger between parent and subsidiary or two-step cash-out merger as in Weinberger. The famous merger between Samsung C&T and Cheil Industries in the year of 2015 gave corporate lawyers in Korea tremendous opportunities to experience variety of legal problems surrounding corporate restructuring. In the wake of this merger, the Il-Sung Pharmaceutical Co. Ltd., a minority shareholder of the old Samsung C&T, filed an appraisal proceeding at Seoul Central Court. It can be expected in near future also in Korea that the courts release many cases, in which the value of synergism from the corporate reorganization are taken into account for fixing the statutory fair value.