주식매수청구권 제도의 재검토

The Korean Commercial Code(“KCC”) provides full discretion to courts with respect to the decision of the fair value of dissenting shareholders’ shares when the corporation and shareholders cannot reach an agreement regarding the fair value of the shares. Under the KCC, there is no specific criteria except “the court shall compute it by a fair price in view of the current status of assets of the company and other situations”(§374-2(5)) in deciding the fair value of dissenting shareholders’ shares. Therefore, the court has the burden to make a ruling on the purchase price of shares after reviewing expert reports submitted by the parties. However, since the court is not specialized organization to compute the fair value of shares, it is inadequate for the court to decide the fair value of dissenting shareholders’ share. It is desirable for the court to play major role in controlling procedural matters rather than in deciding the fair value of shares. This article reviews current rules and regulations of appraisal rights under the KCC, and after it analyzes supreme court cases regarding the standard of deciding purchase price of shares of listed and unlisted corporations, discusses the problems raised in deciding purchase price through market price of shares. It is reasonable for the court to focus on procedural review rather than to decide the purchase price at its discretion. Especially, this thesis raises the unfairness in deciding the purchase price through market price of shares where corporate reorganization transaction constitutes an interested transaction. It also proposes the legislation to constrain right to withdraw appraisal rights of dissenting shareholders in order to prevent opportunistic and abusive exercise of dissenting shareholders’ appraisal rights. In order to solve the problem of excessive statutory interest for arrears when the corporation and shareholders cannot reach agreement regarding the fair value of the shares, it is desirable to allow for the corporation deposit payment by introducing payment in advance of the amount that the corporate considers fair for the shares of dissenting shareholders. In case of listed corporations, since dissenting shareholders can sell their shares at securities market, it is necessary to introduce the market out to appraisal rights under certain limited conditions. However, it need to establish the standard when the market out will not apply before introducing the market out. In addition to ex post facto remedies such as appraisal rights and nullity suit of reorganization, this article proposes to introduces preliminary injunction for corporate reorganization, because it functions as means to provide dissenting shareholders relevant information and can reduce ex post facto remedies.