정관상 주식양도제한과 비상장주식의 매수가격 결정- 대법원 2022. 7. 28. 자 2020마5054 결정 -

This article examines and analyzes the Korean Supreme Court case 2022. 7. 28, 2020ma5054. The target decision was about the unlisted company which requires the shareholders to get the approval of the board of directors for the transfer of shares by the articles of incorporation; it relates to a case in which the company shareholders requested the purchase of shares when they were restricted from transferring their shares. The target decision dealt with matters related to the legality of requesting approval for the transfer of shares under the Commercial Act and the matters related to the determination of purchase price. The Commercial Act stipulates that, for the company’s management stability, it may obtain approval from the board of directors for the transferring of shares through the articles of association. At such a time, shareholders who have been denied transfer approval may request the company to purchase shares. However, there are concerns that the case of excessive exercise of share purchase claims could harm the company’s capital adequacy, and in major foreign countries such as Japan and France, it is necessary to consider that shareholders’ share purchase claims are recognized under more strict requirements than Korean commercial act. In a shareholder’s request for approval of the transfer of company shares, the transferring party does not necessarily need to have a legal entity at the time of the request; however, considering the legislative intent of the restriction on share transference under the articles of association, it must at least be specified to the extent to which the board of directors can determine the impact on the company’s management stability in the case of the transferring party becoming a shareholder. In addition, it may be questionable whether an agreement on the transfer is required to be completed at the time of requesting share transfer approval. In the transfer approval request, the Commercial Act only stipulate the subject of “shareholders who intend to transfer,” and do not specifically stipulate to what extent the transfer agreement should proceed. Under the intentions of the restrictions on share transferring as stipulated according to the articles of association, the company is permitted to determine whether to accept the transferring party as a shareholder and, considering that it is not definitely necessary to complete transfer agreements between shareholders, it is reasonable in principle to assume that the agreement does not need to be completed at the time of the transfer approval request. However, there are concerns that the exercise of the right to request share purchase is abused and may harm the company’s capital adequacy. For example, if there are special circumstances such as the shareholders or the transferring party being unwilling to transfer the shares, or if it is clear that the transferring party is not willing or capable of procuring funds for share transfer, it is necessary to limit purchase requests. Given such possibilities, it is contended that the target decision judging that the applicant can request share purchase is reasonable. On the other hand, regarding the set share purchase price for unlisted stocks, it is reasonable to determine which method to use to calculate profit value by comprehensively considering whether the stock price is distorted when calculating profit value according to the Inheritance Tax and Gift Tax Act; this may be considered instead of the discounted cash flow of the particular industry, and whether, when calculating profit value, the data from which calculating discounted cash flow is submitted. In addition, if the net asset value is closely related to factors based on other evaluative methods, and thus the necessity for reflecting it as a separate, independent calculation factor is low, there is little room for distortion in price calculation even if the net asset value is not reflected. Considering the above discussion, the shareholders’ request for share transfer approval is legal in this case, and the shareholders’ exercise of the request for stock purchase is possible, thus the target decision to calculate the share purchase price is reasonable.