주식매수청구권에 대한 재검토

I would like to review two problems on the appraisal rights in Korean Commercial Law. First, wether we need to introduce the market-out exception provision or not. Second, how we can evaluate the fair value of a stock in appraisal rights. When certain corporte transactions, such as a merger and consolidation, deprive the shareholders of their ownership interests in a corporation against their will, the shareholders can use the appraisal remedy. But we didn’t introduce the market-out exception provisions something like section 262(b) (2) of the Delaware Gereral Coporation Law(DGCL). According to DGCL §262(b)(2), the appraisal rights shall not be available for the shares of stock of any corporation which will be either listed on a national securities exchange or held of record by more than 2,000 holder. In some paper, scholars argue for introducing market-out exception. But the market-out provisions, which denies the appraisal remedy to shareholders of publicly traded corporations, belies a minority shareholder protection purpose. A dissenting shareholder who has properly demanded appraisal may commence an appraisal proceeding by filing a petition in the Korean Court demanding a determination of the fair value of the shares held by all such shareholders. The problems is how the court determine the fair value. Delaware Court of Chancery regularly employ discounted cash flow(DCF) analysis in determining the fair value of appraisal shares. In recently, In In re Appraisal of PetSmart, Inc.(May 26, 2017), the Delaware Court of Chancery determined “fair value” for appraisal purposes to be equal to the merger price. But the valuation methodology recognized by our Supreme Court is the Delaware Block Method in case of unlisted company and Market Price in case of listed company. In conclusion, to determine the fair value, we shall take into account all relevant factors which throw any light on prospects of the merged corporation using the DCF method or merger price.