주식매수청구권에 있어서 매수가격의 결정에 관련된 쟁점사항 검토

Abstract

In Korea, the provisions relating to the dissenting shareholders's appraisal right are scattered in various laws and decrees. Among them, the important process is as followings. Under the Commercial Act, if a shareholder who opposes to the subject matter of a resolution set forth in Article 374 has notified in writing the company of his/her opposition ahead of a general meeting of shareholders, he/she may make a written request to the company that it purchase the shares held by him/herself, within 20 days of adoption of the resolution at the general meeting and shall specify the classes and number of such shares. The purchase price of shares shall be determined through a negotiation between the shareholder and the company, where a negotiation has not been attained within 30 days of the receipt of a request, the company or the shareholder who has requested the purchase of shares may request the court to determine the purchase price. Where the court makes a ruling on the purchase price of shares, it shall compute it by a fair price in view of the current status of assets of the company and other situations(§374-2). Also if, in cases where the board of directors has adopted a resolution on any matter set forth in Article 522 (1), a shareholder dissenting from such resolution has notified in writing the company of his/her intent to dissent prior to the holding of a general meeting of shareholders, he/she may demand in writing that the company purchase his/her shares, with the class and number of such shares specified, within twenty days after the general meeting adopts the resolution. A shareholder who has given written notification of his/her intent to dissent from a merger to the company within two weeks from the date of public notice or notification under Article 527-2 (2) may request that the company purchase his/her shares in a written statement specifying the classes and number of shares within 20 days after the elapse of the period(§522-3). Under the Financial and Investment Services and Capital Markets Act, meanwhile, a shareholder who is opposed to the resolution of the board of directors with respect to the matters for resolution specified by a stock-listed corporation under Articles 360-3, 360-9, 360-16, 374, 522, 527-2 and 530-3 of the Commercial Act may request the corporation to purchase the stocks he/she owns within 20 days from the date when the resolution of the general meeting of shareholder is made, in writing by indicating the type and number of stocks, only when the shareholder has informed the corporation of his/her intention to oppose the resolution in writing prior to the general meeting of shareholder. The purchase price of stocks shall be determined by the consultation between shareholders and the relevant corporation: Provided, That if the consultation is not made, the purchase price shall be the amount calculated in a manner prescribed by Presidential Decree based on the transaction price of the stocks traded on the securities market prior to the date when the resolution of the board of directors is made, and if the corporation or shareholders who requested for the purchase opposes such purchase price, the determination of a purchase price may be filed with a court(§165-5). This provisions relating to the dissenting shareholders's appraisal right under the Commercial and the Financial and Investment Services and Capital Markets Act contains a lot of problems(dual regulation of listed companies and unlisted companies, diversity of making process and calculation method of the purchase price, uncertainty of determination of fair value, various analysis of provisions, irrational system between regulations etc.). But the appraisal rights of dissenting shareholders are a very important tool in protecting the interests of minority shareholders and aggressive care reorganization of majority. In this article, thus, I have investigated legal problems relating to provisions of making process and calculation method of the purchase price, and I have proposed the reform measures for settlement of such legal problems relating to provisions of making process and calculation method of the purchase price under the Commercial and the Financial and Investment Services and Capital Markets Act.