2. The purchase price of 15,520 common shares (the face value of 5,00 won) issued by Sclon Co., Ltd., incorporated into the principal of the case in which the applicant has requested purchase, shall be 124,490 won per share.

3. The total cost of the application shall be borne individually by each person;

The court's explanation on this part is identical to the corresponding part of the reasoning for the decision of the court of first instance (Article 443 (1) and the main sentence of Article 420 of the Civil Procedure Act.

2. Determination

A. On the standard for determining the purchase price of stocks

1) In a case where a shareholder opposing a business takeover, etc. of a stock company requests the relevant company to purchase unlisted stocks, the court shall determine the fair purchase price of the stocks by taking into account the company’s financial status and other circumstances. As such, in a case where there is a normal transaction example that properly reflects the objective exchange value with respect to the relevant stocks, the price of the stocks shall be determined at the market price considering the transaction value. Meanwhile, even if there is a normal transaction example that properly reflects the objective exchange value with respect to unlisted stocks, if it is difficult to determine the price of unlisted stocks as the price of the stocks solely based on the above transaction value in light of the transaction time, the transaction circumstance, the company’s internal situation or management situation after the transaction, and the close relation between the price calculated based on other appraisal methods, the aforementioned transaction value or the amount adjusted according to reasonable standards may be considered as an element to calculate the fair price of stocks (see Supreme Court Order 2005Ma958, Nov. 23, 2006).

2) During the period from December 1, 2011 to November 2, 2012, the principal of the instant case asserts that 60,973 won per share, the average transaction price according to the result of the fact-finding inquiry conducted against shareholders who have traded three-way stocks, shall be deemed to be “market price”. Even if not, the principal of the instant case shall determine the purchase price of 85,00 won per share, the transaction price of 119,730 shares per share, which is the parent company of the instant case, between Samsung Electronic and the 108 shareholders, should be deemed to be “market price.”

However, in light of the following circumstances explained by the record, the purchase price shall not be calculated on the basis of a normal transaction practice that reflects objective exchange values of KRW 60,973 per share, the average transaction price based on the results of fact-finding inquiry, or KRW 85,00 per share in the above transaction case claimed by the principal of the case, as an ordinary transaction practice that reflects objective exchange values.

① The fact-finding inquiry for the political party is merely for 25 shareholders, and its trading volume does not exceed 500 shares per shareholder. The price is too diverse from 30,000 won per share to 96,50 won, and it is difficult to view that the average value is a normal transaction example reflecting objective exchange values.

② The aforementioned transactions between Samsung Electronic and 108 shareholders are not conducted between many unspecified persons in an open over-the-counter stock market, but are conducted through a stock sales contract between individual shareholders and Samsung Electronic, and all of the transactions are identical to 85,000 won per share.

③ Most of the instant stock transactions conducted between Samsung Electronic and 108 shareholders were concentrated on around one month from September 10, 2012 to October 15, 2012, before the resolution for the instant merger was reached by the Sclon board of directors.

④ In the case of the above transaction between Samsung Electronic and 108 shareholders, the purchaser is Samsung Electronic, both of which is the parent company of the principal of the case, and most of the buyers were executives and employees of the seller.

3) As long as the objective exchange value of the shares issued by the principal of this case cannot be seen as having been properly reflected in normal transactions, the court shall utilize various methods of appraisal, such as net asset value method, profit value method, market value method, etc. which are generally accepted as to the valuation of unlisted stocks, but the relevant laws and regulations governing the method of appraisal of unlisted stocks apply different standards according to their purpose of establishment, so it cannot be readily concluded that any one method of appraisal should be applied at all times, and fair price should be calculated by comprehensively taking into account the pertinent company’s situation, characteristics of business, etc. (see Supreme Court Order 2004Ma1022, Nov. 24, 2006; Supreme Court Order 2005Ma958, Nov. 23, 2006). Under the above, the court shall review whether the method of appraisal generally recognized, and its appraised value, considering the characteristics of the market where the principal of this case engages in the business.

(b) Evaluation according to the market value method;

1) The net asset value reflects the current status of the company in financial statements as at the evaluation base date, and the profits value reflects the company’s future revenues, but ultimately, even if the value of the stock is gathered in the value of the company in question, it is bound to be affected by demand and supply in the capital market at least short-term. Therefore, in determining the purchase price of the shares in this case, it is reasonable to consider the value that the applicant could have been assessed in the market at the time of

2) In the instant case, the instant principal asserts that, even if it cannot be seen as a “market price” among 60,973 won per share or 85,000 won per share, which is an average transaction price based on the result of the fact-finding inquiry, between Samsung Industries and 108 shareholders, it should be evaluated as a “market value” as a supplementary assessment method. However, as long as the said price cannot be deemed as an ordinary transaction practice that reflects an adequate objective exchange value, it is reasonable to deem that the “market value” of the instant shares cannot be assessed on the basis of this.

(c) Evaluation based on the net asset value method;

1) The value of assets calculated in accordance with the net asset value method based on assets and liabilities on the balance sheet with which the reliability is verified in the transaction of unlisted stocks, or the net asset value method based on the market value assessment based on the market value assessment of assets, liabilities, assets, and liabilities revealed as a result of the inspection is an important index showing the current status of the company. Therefore, in determining the purchase price of stocks in this case, the appraised value of the stocks should be considered in accordance with the net asset value, barring any special circumstances. In addition, where specific appraisal results exist in the market value of the assets in this case, it is reasonable to calculate the value of assets by reflecting such results

2) As of September 30, 2012, the net asset value of the instant principal’s financial statements as of September 30, 2012 is KRW 85,317,669,869, which is the result of evaluating patent rights among intangible assets as KRW 166,561,738 (Evidence 13-1). However, according to the result of the appraisal commission and fact inquiry with respect to the Nonparty at the trial, the value of the instant patent right can be assessed as “28,234,458,525 won” (Sales standard), and ultimately, on September 30, 2012, the net asset value of the principal of the instant case as of September 30, 2012 as of KRW 113,385,56,666,69 won (=85,317,69,699 won + 206,87,896,787,784,785,75365)

Therefore, the net asset value per share of the instant shares is KRW 141,731 (i.e., the net asset value of KRW 113,385,56,656 ±80,000, and less than KRW 141,731).

(d) Evaluation according to profit-value methods;

1) In a case where a company continues its business and creates profits, it may take into account the profit value of the stocks in determining the purchase price of the stocks as “other circumstances” stipulated in Article 374-2(5) of the Commercial Act. Moreover, for the following reasons, the future profit value assessment method is not appropriate by the calculation method of the purchase price of the stocks of this case. Therefore, it shall be calculated based on the profit value according to the evaluation method under the Inheritance

2) In the instant case, the net profit or loss amount per share for the three preceding years before the instant merger resolution ( October 18, 2012) of the principal of the instant case is KRW -4,256 won in 209 (=3,405,02,640 won ± 800), KRW 7,355 won in 2010 (= 5,884,397,123 won ± 800,00) ± 14,517 won in 2011 ± 11,614,386,464 ± 80,000 won in ± 1300 won in 209 ± 500 won in 205 ± 360% in 200 won in 200 (30% in 205) in consideration of the average profit or loss amount per share ± 56(1) of the Enforcement Decree of the Inheritance Act) in consideration of the profit or loss rate per share

3) Determination of the claimant's assertion

A) In calculating profit value, the applicants do not properly reflect profits through new businesses, such as inspection equipment of Sclon and logistics automation equipment, if they are based on past profits, but underassessment of the company’s sales and net profit per share continuously increased since 2010. As such, the applicants’ future profits should be taken into account. As such, as in the third theory, 577% of the estimated growth rate for Samsung Electronic and its related companies can also be applied to Sclon, namely, inasmuch as the estimated growth rate of 57% for Samsung Electronic and its related companies to be a subsidiary and semiconductor equipment company, as well as the third theory, can be applied to Sclon. Accordingly, the applicants asserted that the estimated growth rate should be calculated by applying the expected growth rate of ScS, focusing on estimated profits in accordance with the method of assessment stipulated in the Financial Investment Services and Capital Markets Act (hereinafter “Capital Markets Act”) and the Regulations on Issuance and Disclosure of Securities delegated by the said Act (hereinafter “Disclosure Regulations”) or based on the existing growth rate of 30 years, 2013 and 2013 per share profits.

However, based on the expected growth rate of S., the applicant's above assertion that it is necessary to calculate the profit value of SP by applying the appraisal method under the Disclosure Regulations is difficult to accept in light of the following points.

① It is difficult to secure objectivity, and the amount of net profit and loss per share in 2013 or the amount of net profit and loss per share in 2014 is 7,040 won (Evidence 48-1, 2013). Moreover, at the present point, it is difficult to apply the method of appraisal under the Securities Issuance and Disclosure Regulations based on the estimated profit for two years in the future (2012, 2013).

② It is difficult to view that two companies have a similar sales structure and business characteristics to the extent that the materials submitted by the applicants alone can be applied to the assessment of the stock value of the SP loan as it is.

B) The applicants asserts that even if the profit value is calculated on the basis of the past profits according to the method of evaluation under the Inheritance and Gift Tax Act, it should be based only on the results of the year 201 and 2012, excluding the year 2009 and 2010, which had been the most track record in light of the trend of changes in net profit per share of the Sclon.

However, in calculating the purchase price of stocks, the value of stocks must be determined as of the time before they were affected by transfer of business, etc. (see Supreme Court Order 2005Ma958, Nov. 23, 2006). In addition, Article 56(1) of the Enforcement Decree of the Inheritance and Gift Act provides that the weighted average amount of net profit and loss for the last three years per share under Article 54(1) shall be the value calculated according to the following formula as “the method of calculating the net profit and loss for the preceding three years per share”. In such cases, where the value is negative, it shall be zero. The weighted average amount of net profit and loss for the last three years per share = [the weighted average amount of net profit and loss per share for the preceding three years years x 3) + (the net amount of profit and loss per share for the preceding two years x 2) 】 (the net amount of profit and loss per share for the preceding three years x 1 year x 6) ± the net value per share before the appraisal base date.”

In light of this, the profit value according to the method of appraisal under the Inheritance and Gift Tax Act is reasonable to be calculated based on the results of the year 2009, 2010, and 2011, which was the previous three business years after excluding 2012, including the date of resolution of the board of directors for the merger of this case, which was the date of the resolution of the board of directors for the merger of this case. Thus, the above assertion by the applicants cannot be accepted.

E. Calculation of purchase price of the stocks of this case

The value of assets per stock issued by the principal of this case is KRW 141,731, and the value of profits under the Inheritance and Gift Tax Act is KRW 90,008.

On the other hand, if the evaluation results by various methods are to be considered in determining the purchase price of stocks, not simply an arithmetic mean, but the ratio that reflects the evaluation factors depending on the situation of the company in question or the characteristics of the type of business in question, whether the aforementioned evaluation factors may appropriately reflect the objective value of stocks, and whether there is any error in the value calculation by such methods (see, e.g., Supreme Court Order 2004Ma1022, Nov. 24, 2006; Supreme Court Order 2009Ma238, May 28, 2010).

In this case, the net profit and loss amount per share of the principal of this case in 209 -4,256 won in 2010, 7,355 won in 2010, 14,517 won in 22,984 won in 2012, 2013, 467 won in 2013, 7,040 won in 2014, and the amount of profit and loss under the Inheritance and Gift Act in 2014 is too large and it is difficult to view that the above amount of profit and loss should be appropriately reflected the objective value of the shares in this case, while it is reasonable to consider the ratio of 1 in 2:00,00 won in case of asset value based on September 30, 2012, but it can be deemed that the actual value of the shares in this case reflects the actual value.

Therefore, if the fair purchase price of the instant shares is calculated by weighted average of the asset value and profit value per share as seen earlier, it would be 124,490 won (=141,731 won x 2 + 90,008 won x 1) ± 3].

3. Conclusion

If so, the decision of the first instance shall be revoked, and the purchase price of the shares of this case requested by the applicant shall be 124,490 won per share, and it shall be determined as per the order.

Judges Lee Jae-won (Presiding Judge)