비상장주식의 평가방법에 관한 판례 연구 (서울지방법원 2003. 6. 13. 선고, 2003고합237)

A Commentarial Study on the Evaluation of Unlisted Stocks

The so-called "SK Affairs" came into existence in our society last year of 2003, and it also brought some negative views to the so-called "Chaebols" with the respect of the economic and legal perspectives. In addition, it is generally said that the "SK Affairs" has reflected the questions that there were no fruits for the improvement of corporate governance in Korean enterprises nevertheless the Korean government has gradually tried to make it better since the Korean economic crisis of the late 1997. However, even though the "SK Affairs" brought many social problems not all were blameful in the light of the legal aspects. The evaluation of the unlisted stocks for the stock exchange between affiliated companies of the SK Group in the “SK Affairs” caused a construction of a misfeasance even though the evaluation of the unlisted stocks in this affairs followed the evaluation method under the related law. Actually, the evaluation method for the unlisted stocks in this affairs had never brought any problems. So almost every corporations in Korea have followed the evaluation method just like the method in this affairs. But the court in this case unprecedently concluded that the evaluation of the unlisted stocks were not fair, so it legally caused the breach of the trust to the corporation. Eventually the court decision of this case gave the Korean corporations hot potatoes. When the corporations take the evaluation method for the unlisted stocks like that in this case, the corporations must take very serious considerations and evaluated all circumstances around the transactions even if the method is allowed under the related law. This commentary will not examines the specific problems that are included only in the "SK Affairs." Instead this commentary will analyzes ubiquitous methods of the evaluation for the unlisted stocks with the objectivity and principle in order to find out the general standard for the evaluation of the unlisted stocks. Because the problem of the evaluation method for the unlisted stocks is not only to the matter of the specific corporation, the SK group in this case, but also to the matter of all corporations in Korea. The commentary basically explains the stock exchange case of the SK Affairs, and examines the Supreme Court's precedent cases that are concerned about the evaluation method of the unlisted stocks. The commentary analyzes the general and standard evaluation method for the unlisted stocks under the Korean related laws, and examines the specific method of evaluation for the unlisted stocks in this case in order to find out what is wrong in this case. Finally the commentary proposes some schemes for the betterment of the evaluation method for the unlisted stocks.