주식매수청구권에 대한 매수가격 산정에 관한 고찰 ― 2017년 Dell, Inc. v. Magnetar Global Event Driven Master Fund Ltd. 판례를 중심으로 ―

In Korea and the U.S., there is not any specific method or standard to establishing the fair value of the shares in an appraisal proceeding, but the general principle. Until these days various methods and standards to determine the value of dissenting shares have been made by courts’ decisions. In December 14, 2017, the Delaware Supreme Court issued the important decision providing the defined standard to determine the fair value for the shares of shareholders dissenting the management buyout in Dell, Inc. v. Magnetar Global Event Driven Master Fund Ltd. The Delaware Supreme Court provided clarity that the market-based elements, such as the company’s stock price in the efficient market and the merger price of robust sale process should be deserved heavy, if not dispositive, weight in the fair value analysis required by the appraisal statute, while the court was skeptical of the reliability of the Discount Cash Flow analysis in determining the fair value of dissenting shares. In Korea, where the appraisal proceedings for the listed company and the unlisted company are regulated differently by Commercial Act and Financial Investment Service and Capital Market Act, the Supreme Court used the method, which is similar to the Delaware Block Method, reflecting the market value, net asset value, and earnings value to determine the fair value of shares of the unlisted company in the appraisal proceeding, though it still emphasized that there is no single specific standard or method for the fair value analysis, and, instead, all relevant factors, such as the situation of the company and the nature of the business, should be considered. In terms of the listed company, the Supreme Court mostly held that the fair value should be estimated by the market price of the company exclusive of any effect from the accomplishment or expectation of the deal. In this paper, first, the procedures for exercising the appraisal right and the standard to determine the fair value of shares of dissenting shareholders will be reviewed in detail by focusing on cases in Delaware, and then the factual background, the Delaware Supreme Court’s decision, and issues regarding Dell, Inc. v. Magnetar Global Event Driven Master Fund Ltd. will be examined closely in order to provide meaningful implication for the appraisal proceeding in Korea.