상법상 주식매도·매수청구권에 관한 주요쟁점 검토 - 최근의 대법원 판례를 중심으로 -

Under the Commercial Act, in cases where necessary to achieve managerial objectives of a company, a shareholder(controlling shareholder) who owns, on his/her own account, 95 percent or more of the total number of issued and outstanding shares of the company may request other shareholders(minority shareholders) of the company to sell the shares held by them(§360-24 (1)). And A minority shareholder of a company which has a controlling shareholder may, at any time, request the controlling shareholder to purchase the shares held by the minority shareholder(§360-25 (1)). The amended Commercial Act of 2011 introduced the right to demand the sale of shares by controlling shareholders and the right to purchase stocks of minority shareholders in order to achieve efficiency and cost reduction of corporate governance when certain shareholders hold most of the issued shares. In particular, the right to demand the sale of stocks is to forcibly remove minority shareholders from the company by the discretion of the controlling shareholder, so that it must be procedurally fair and that minority shareholders should not be disadvantaged. This is the problem, and unlike the legislative intent of commercial law, the utilization rate in practice is very low. Recently, however, the important precedents of the Supreme Court have emerged and the debate has been resumed. The problems that are contained in the right to request sale by the controlling shareholders, which are identified through the major issues raised in the precedent and the related issues related thereto, and the reasonable ways to improve them are as follows. That is, (1) the total number of shares to be issued should clearly state that treasury stock is included. (2) If the dominant shareholder is the parent company, the treasury stock held by the subsidiary company should not be included in the holdings of the controlling shareholder. (3) We must clarify the statement of self-calculation. (4) If the parent company, its subsidiaries and grandchildren own shares in the same company, the minority shareholder of the company should clearly state which parent, subsidiary or grandchild should be considered as the controlling shareholder. (5) It should clearly stipulate when the controlling shareholder should hold more than 95% of the shares. (6) It is necessary to define the method of calculation of more detailed stock trading price as in the case of major countries. (7) Solve the problem of fairness with respect to the fairness arising from the basis for calculating the value of the stock trading, and take complementary measures such as conversion of burden of proof to protect the interests of minority shareholders. (8) The method of calculating the value of the stock trading price in the right to purchase shares to be approved by the shareholders who oppose the merger is treated in the same way as the method of calculating the value of the stock trading rights in the right to demand the sale of shares of controlling shareholders and minority shareholders Since it is not valid, it should be clearly defined separately. (9) In order to secure the fair feelings of an authorized appraiser, an authorized appraiser must be appointed by the court and the appraisers' appraisal should be judged by the court.