美國會社法上 株式買受請求權의 機能 = The Function of Appraisal Remedy in the America Corporate Law

다국어 초록 (Multilingual Abstract)

In the modern corporate law, appraisal remedy is one of the most important rights to protect minor shareholders in fundamental changes of a corporation. Korea has developed amendment of act for corporate reorganization or restructuring. Simultaneously, appraisal was expanded to other corporate changes, e.g. diversion merger, stock exchange and transfer. But it has not yet studied that appraisal actually accomplishes what kinds of function to shareholders as investors. In USA, the research for the function or role of the appraisal carve out several times.
In USA, the specifics of appraisal differ from jurisdiction to jurisdiction, most state appraisal statutes share several basic features: they confer appraisal rights upon shareholders who object to transaction such as mergers and consolidations, sale of all or substantially all, the corporation's assets and serious charter amendments, such as those altering the purpose for which the corporation is organized; they define fair value as the value of the shares prior to giving effect to the transaction from which the shareholders dissent; and they include a market out that withdraws appraisal rights when the objectors' shares are publicly traded.
Traditionally, commentators viewed appraisal rights as necessary to protect shareholders who object to fundamental changes from being forced to invest in new firms against their will. Bayless Manning, however, challenged this traditional view of appraisal, as a remedy necessary to protect shareholders from the effects of fundamental change. He argued that the traditional view of appraisal had to be flawed because appraisal statutes were not broad enough to achieve that goal.
Several commentators have taken up Manning's challenge to explain appraisal rights, most notably Fischel, Kanda and Levmore, and Gilson. For the most part, these commentators have argued that appraisal remedy should be viewed as a check on misconduct by managers and controlling shareholders. But their efforts have fallen short for three principal reasons. First, each of more of the basic features of the appraisal remedy. Second, none explains the evolution of the appraisal remedy over time, particularly the introduction and expansion of the market out. Third, none of these theories carves out for appraisal a function that is distinct from that served by other corporate law remedies, such as the shareholder's action for breach of fiduciary duty.
Recently, a new theory of appraisal was proposed by Letsou. This theory focuses on the capacity of appraisal rights to reconcile differing shareholder preferences. This new theory has a lot of merits in understanding for the various statutes in USA and behaviors of investment shareholders in the stock market. In value rule of the dissenters' stocks, this theory, however, inconsistent with Weinberger methods that did not conclude pre-transaction price but price with premium due to merger synergy.
Despite of it's flaw, this new theory has current events in regard with appraisal's function in the stock market. It may be possible to view the future of appraisal through this new theory.

목차 (Table of Contents)

• Ⅰ. 序論
• Ⅱ. 株式買受請求權의 沿革
• Ⅲ. 株式買受請求權의 機能論
• Ⅳ. 結論