會社法上 非上場株式 評價의 爭點과 代案

In many corporate law transactions such as merger, issuance of new shares, appraisal remedy, and self-dealing, valuing stock has often been a central legal issue. Despite the remarkable achievement of recent financial asset pricing theories, the courts are very unlikely to feel comfortable in handling this issue, mainly because the estimates reported by each plaintiff and defendant shows quite a huge gap that could not be completely explained by mere statistical errors. Since this tendency may cause the court to make an error in finding “fair” price, both parties have an ex ante incentive of committing an opportunistic behavior. Currently the Korean courts place an emphasis more on objectivity or verifiability of firm valuation, but it does not seem to cure this incentive problem. In this regard, this paper proposed a new approach, by recognizing that valuing a firm is not a legal but an economic issue that can be better handled by economists. (1) When the court has to decide whether the agreed price was “significantly” high or low compared with the fair price, the court decision should depend more on whether the process including an approval of disinterested directors was fairly made. (2) When the issue is measuring the exact value of a firm, the court should be recommended to completely buy one party’s valuation which is more convincing than the other party’s. Both approaches will be likely to diminish the power of the judiciary, which seems to be inevitable.