주식매수청구권 행사의 매수가격의 공정성에 관한 연구 - 소수파주주 권리강화론을 중심으로 -

Abstract

Korea’s current commercial law does not provide a standard for a fair purchase price other than the stipulation that ‘you must calculate it at a fair price’ for appraisal right. Calculating the fair value of a stock is actually a very difficult task. This is because there is no objective criterion for the value of stocks, and even if it exists, the judgment on the value is subjective. Decisions on specific prices will have to be settled by theories and precedents. Unlike ordinary movable property or real estate, the value of stocks, especially unlisted stocks, has not been established as a method and standard for determining this, and it is difficult to see that it has been negotiated or understood between the parties. The fact that the Commercial Law stipulates the price determination by the court reflects the reality that it is difficult to negotiate even the criteria to be applied to determine the value between the parties. In the exercise of the stock purchase right, the Korean Commercial Act requires the company to purchase the stock within two months, and a decision is made by the parties’ agreement, and if both parties do not agree, the decision can be requested to the court. However, there is no specific standard for consultation between the parties under the commercial law, and access to specific data on the valuation of a company through which the parties can calculate the amount is not fair. The company will try to measure the price of the stock low, and the shareholder who is the seller will try to get the stock price high. When the market value of the stock purchase right does not reflect the intrinsic value of the stock and is overvalued, the company must pay more than necessary purchase price. This would undermine the principle of full capital and go against the interests of corporate creditors and remaining shareholders. On the contrary, if the market value is undervalued than the intrinsic value, the shareholder who exercises the stock purchase right does not receive its fair share and suffers damage. Company laws in US footnotes consider the concept of value commonly used under common law for shareholders who oppose the definition of’ fair value’ before the business transaction, and the technology and marketability used in unusual businesses, and based on the status of minorities. It considers the value of stocks, and stipulates that there should be no downvaluation of stocks because of the status of a minority. In Japan’s Codeal ruling, fair value is a price that is not valued below the stock price before the company’s merger was announced. In addition, as seen in the rulings of Ilsung Pharmaceuticals and the former Samsung C&T, the price of stocks should not be affected by the setting of the price from the controlling shareholder. As we saw in the stock purchase price of Japan’s Cordial Group and Korea’s former Samsung C&T and Ilsung Pharmaceuticals cases, it may not be appropriate to call the market price an immediate and fair price. If the market is influenced by factors other than trading, such as manipulation of stock prices or fraudulent means, the market price loses fairness. If the management or major shareholders perform market control that lowers the stock price in order to reduce the amount of stock purchase or purchase claims to be paid, the price will lose fairness and result in the unreasonable expulsion of minority shareholders. The proposal for a fair share price is as follows. First, the stock purchase price should be judged based on the value commonly used under customary law, the characteristics of the individual business, the market situation, and the status of minority shareholders. Second, the stock purchase price by the appraisal right should not be undervalued from the market price before the merger was announced. The merger premium should be reflected. Third, the stock purchase priceby the appraisal right monitors the timing of the calculation of the rational stock purchase price by the appraisal right and the degree of market intervention of the controlling shareholder, majority shareholder, and major shareholder in order to prevent the stock price from being formed by market intervention of the controlling shareholder, majority shareholder, and major shareholder. Should be done. A rigorous review of the three above will form a fair price, and the common requirement of the three premises is that a fair price must be set based on the protection of minority and minority shareholders. In this regard, the determination of the stock purchase price of the former.