판례를 통하여 본 주식의 공정한 가액

• 영문명: Comments on Korea Appraisal Right Cases re Fair Price of Shares
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 정영철(Young-Cheol Jeong)
• 간행물 정보: 『비교사법』比較私法 제16권 제1호, 321~365쪽, 전체 45쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2009.03.30

영문 초록

Korean Commercial Code would be changed to the effect that a merging company can cash out minority shares. Furthermore, 95% shares can freeze out the minority shares in cash at fair price. These upcoming changes would increase the importance of the standards for fair price of shares, especially non-listed companies. Based on the review of Korean court decisions on fair price in general, I argue the court should modify the criteria for determining the fair price of minority shares in appraisal proceedings. Two groups of Korean court decisions on fair price of shares are reviewed to find any consistent rules. The first group (Group 1) is relating to the fair price of the shares that the management disposed of in violation of fiduciary duty. The second group (Group 2) is relating to appraisal rights. Inconsistencies withtout any statutory or policy reaons exist between two groups of decisions. Group I sticks to the net asset value while Group 2 calculates the weighted average of net asset value, earnings value and market price. Group I delves into comps, EVA, EVIDTA and discounted cash flow, although completely discarded in the end, while Group 2 calculates the earnings value by applying the rules under the Inheritance and Gift Tax. Group 1 does not consider goodwill value while Group 2 stresses the need to include goodwill value. Management premium is counted upon in Group 2 while Group 1 is hesitant in accepting the concept. Based on the analysis of Groups 1 & 2 decisions, and US appraisal rights cases, first, I argue the net asset value approach in Group 1 should be abolished to make it consistent with Group 2. Second, Group 2 should consider incorporating the more sophisticated financial valuation methodologies such as comparable company value and discounted cash flow, which were discussed in Group 1 decisions. Finally, appraisal remedies and any other remedies in the case of, for example, a merger should be permitted non-exclusively and the end result should be the same to avoid any possible abuse by the minority shareholders or the company management of the inconsistencies in law.

목차

Ⅰ. 머리말

Ⅱ. 주식매수가액결정신청 이외의 사건에서의 주식적정가액산정사례

Ⅲ. 주식매수가액결정신청시 주식평가사례

Ⅳ. 미국의 판례

Ⅴ. 판례검토에 기초한 앞으로의 방향에 대한 제안

Ⅵ. 결론

【參考文獻】

[Abstract]

키워드

주식매수청구권 공정한 가액 주권상장법인의 주식매수 청구권의 특례 기업가치평가 순자산가치 수익가치 할인율 현금흐름할인방식 가중평균자본비용 유사업종비교방식 Appraisal Rights Fair Price Special Rrules for Listed Companies Enterprise Value Net Asset Value Earnings Value Discount Rate Discounted Cash Flow Weighted Average Cost of Capital Comparables