經營者에 의한 企業買受에 있어서 公正한 價格決定에 대한 考察

The Commercial Act revised on April 14, 2011 adopted a new provision whereby the shareholder who owns more than 95%(in computing the number of shares held, the holdings of parent and subsidiary shall be summed up, and in this case if a shareholder who is not a company holds majority of a company, then the shareholding of the shareholder and the shareholding by company shall be summed up) of the total number of shares issued by a company in his/her account (hereinafter referred to as “controlling shareholder”)는 is entitled to acquire other shareholders'(hereinafter referred to as “minority shareholders”) shareholdings by request, if such purchase is required for justifiable managerial purpose of the company.(The Commercial Act Article 360-24‘, paragraph 1 and 2). In case of this Management Buy Out as the special case of M&A whereby current management or controlling shareholder is the acquiring party, the management or controlling shareholder becomes one party and minority shareholders become the other party of the transaction, hence this transaction is exposed to conflict of interest from the buyer side and necessitated this enactment. However in Korea, the Act only prescribes that “if the price cannot be agreed within 30 days from the request by controlling shareholder, the determination of the transaction price shall be submitted to the Court, and the court shall compute the fair price in consideration of the status of properties of the company and other conditions”(Commercial Act Article 360-24, paragraph 8 and 9). And currently the realistic guideline for the fair price computation is not clear yet. Therefore the issue of what would be the guide for the fair price computation can only be identified by judical precedents. In Korean, judical precedents or theoretical base on this issue is very much scarce. However, fortunately several cases successively appeared recently, though not directly related, from the Supreme Court and lower instances. Accordingly it is possible to sketchily find out what is the determination guide. Meanwhile in case of Japan, when the Company Act was separately adopted in 2005, the Act introduced a class of share so-called “Class of shares that could be purchased wholly by the issuer company by resolution of the General Meeting of Shareholders”(hereinafter referred to as “Class of shares that could be purchased wholly by the issuer company”) as the Act diversified the classes of shares. Since then the issue of 「fair pricing」 became the concern(Japanese Company Act Article 108 paragraph 1 subparagraph 7, Article 171 to 173). Thereafter, researches and discussions were actively focusing on judicial precedents on how 「fair price」 could be determined without causing damage to fundamental interest of shareholders (minority shareholders) in transacting this class of share. In other words, regarding the argument and proof that MBO purchase price is fair, the fairness of the process was reviewed first. And then the next concern was what process would justify the purchase price as fair. However recently, a new case appeared that took different position in determination of fair price than the existing cases, though in lower instances. Accordingly discussion on the issue is being reopened. In this regard, this paper commences from the comparative review of the above Japanese cases and Korean cases in detail. And then this paper will review the fair price determination guideline in MBO in the positive law as a theoretical approach.