주식매수청구권의 가격 설정 기준과 공정성에 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. Income Approach, Asset Approach, Market Approach are three method for valuing a stock. First two approaches are the book based ones and the last one resort to the market for finding the value of a stock. However, in finding the fair value of a stock, these three approaches have to be combined because there we cannot find a single, dominant method for getting the fair value of a stock. To get fair value of a stock, judges can put some weight to each factor or block of the formula. This approach has been called as Delaware Block Approach in US. In case of appraisal right, Korean Commercial Law and Capital Market Law both oblige the judges to find the fair value of a stock even though only Commercial Law use the word, “fair value” expressly. Considering the fairness issues in these laws, we can take similar approach as that of Delaware Block Approach in US. Still in this article I suggest that the Delaware Block Approach can be modified in Korean context by the way though which we put the market value as a starting point of getting the fair value of the stock and we can use the shift of the burden of proof to produce the evidence of the fair value of the stock at issue.