주식매수청구시 주식매수가액의 결정 -대법원 2011.10.13. 자 2008마264 결정을 중심으로-

Corporations created under modern corporation statutes are democratic organizations, subject to majority rule. As a result, minority shareholders are vulnerable to abuse at the hands of the majority. Appraisal rights attempt to preserve the rights of minority shareholders to receive “fair value” for their holdings in the event of a corporate merger or consolidation. Valuation of the equity shares of any corporation, whether it is publicly traded or privately held, is one of the most subjective and challenging tasks the courts will ever deal with. Even financial professionals view the process of determining the fair value of equity as one of the most daunting tasks that they must face during the course of their careers. The single biggest reason that this task is so challenging is the fact that there is no single prescribed formula that is most effective for valuing the common equity of every company. It is particularly important that courts determining fair value in appraisal proceedings be aware of the purposes now served by the remedy. Courts should be willing to entertain all relevant evidence bearing on the fair value of the corporation. In October 2011 the Supreme Court of Korea determine first Supreme Court case (2008MA264) in which dissenting shareholders of a listed corporation demanded the court to determine the fair value of the listed shares. In this case, the Supreme Court held that when the parties demand and petition the court to determine the fair value of the listed shares after dissenting shareholders of a listed corporation exercised appraisal rights, the court, if the market value is reflected in the objective exchange value, shall determine the fair value of the listed shares with reference to the market value. But, in determining the fair value of unlisted shares, the Supreme Court held that when dissenting shareholders demand the court to determine the fair value of the unlisted shares, if there is the actual practices of the objective exchange value appropriately reflected normal trading with respect to the unlisted shares, the courts would consider the exchange value seen as the market value as the fair value of the unlisted shares; however, if there is no such actual practices, the courts would used a valuation methodology called the “Delaware block approach” to utilize various evaluation methods normally recognized as being about the evaluation of unlisted shares such as market value method, the net asset value method, earnings value method, and so on.