주식매수청구권의 행사와 매수가격결정에 관한 연구

There are many occations upon which the shareholders of a corporation will object to, or dissent from types of corporate fundamental transaction such as merger and a disposition of all or the greater part of the assets. Many people believe it is unfair to require someone to become a shareholder in a new corporation that may be totally different from the one in which he or she originally invested. Therefore, korean commercial law gives dissenting shareholders appraisal right. Appraisal rights allow dissenters to sell their shares back to the corporation for cash for its fair value. In order to pursue the appraisal right, a shareholder must complete several procedural steps. The dissenter must send a written notice of his or her objection to the merger before the meeting at which the merger will be considered. The shareholder must make a written demand on the corporation for the fair value of the shares in 20 days after the merger has been approved. The corporation must buy the share within 2 months. If the corporation and the dissenting shareholder disagree about the fair value of the shares in 30 days, either party may petition a court to determine the fair value in an appraisal proceeding. The Korean Commercial Law requires that a shareholder be paid “fair value” for the shares subject to appraisal, but no guidance is given, how to “fair value” is to be determined. The definition of fair value must include not only the present value of the corporation's existing assets, but also the future opportunities to reinvest free cash flow, including reinvestment opportunities identified, even if not yet developed, before the merger. On the other hand, any value that may created as a result of the merger that caused appraisal, should not be included in determining fair value. The appraisal is of the company exactly as it was being run.