2. The cost of the application shall be borne individually by each party;

In full view of the records and the overall purport of the examination of the case, the following facts are substantiated.

A. The instant principal is a non-listed corporation, and is a subsidiary of Samsung Electronic Co., Ltd. (hereinafter “Tsung”). The instant non-listed corporation is one of the subsidiaries of Samsung Electronic Co., Ltd. (hereinafter “Tsung”), and is a company that was a subsidiary of Samsung Electronic Co., Ltd. (hereinafter “SS”), and a company that was incorporated for the purpose of manufacturing and selling equipment for semiconductor manufacturing. The instant principal was a minority shareholder who owns a total of 15,520 shares (ordinary shares and 5,000 shares per share).

B. On October 18, 2012, the instant principal and Sclon, SS, held each board of directors meeting on October 18, 2012, and passed a resolution to absorb Sclon and SP as the merger date. After concluding the merger agreement in accordance with the resolution of the board of directors, each general meeting of shareholders was held on November 29, 212 and resolved to approve the merger. The merger registration was completed until January 3, 2013 (hereinafter “the instant merger”).

C. According to the Sclon’s decision on the merger, each of the stock values for calculating the merger ratio, the instant principal and Sclon shares is KRW 190,000 per share with the market price reflected, and KRW 85,000 per share with the net asset value, which is a supplementary assessment method under the Inheritance Tax and Gift Tax Act (hereinafter “The Inheritance Tax and Gift Tax Act”), and the net profit and loss value per share with the weighted average of KRW 146,00 per share.

D. The applicants notified the instant intent of opposing the instant merger and filed a claim for the purchase of shares on or around December 2012, on the grounds that the value (85,000 won per share) of the third party’s stocks calculated by the said method is too low. The applicants filed the instant application to the effect that consultation on the purchase price would not be reached.

2. Summary of the parties' arguments

A. Applicant's assertion

85,000 won per stock is determined by Samsung Electronic, which is a major shareholder of the third party of the third party of the third party loan, and thus, the calculation of the purchase price of the instant stocks is based on supplementary assessment methods. However, there is no market value for the said stocks, and in calculating the value of assets, the actual value for the land, such as the publicly assessed individual land price and patent, should be reflected in the calculation of the value of assets. In calculating the value of profits, the calculation of the value of profits should be based on future estimated profits, and even if based on the past profits, the calculation of the value of assets and profits should be based on the average value of profits in the calculation of the value of assets. The ratio of the value of profits in the weighted average of value of assets and profits should be much higher than that of the value of profits in the calculation of the value of assets.

B. The argument of the principal company

The stock purchase price of this case shall be calculated by considering 85,00 won per share determined according to the free will of the Samsung Electronic and the Sclon shareholders as “market price” in which objective exchange value is appropriately reflected. Even if the above market price cannot be seen as the market price, the stock purchase price shall be calculated by the weighted average of market value, net asset value, and earnings value according to supplementary evaluation methods, but the market value shall be calculated by the above transaction price based on the statement of financial position, net asset value shall be calculated based on the net asset value, and the net asset value shall be calculated based on the profits of the past 2009, 2010, and 3 years, 2011, not on the future estimate profits, according to the evaluation methods under the Inheritance and Gift Act, not on the statement of financial position.

3. Determination

(a) Method and criteria for determining the purchase price of stocks;

Articles 530(2) and 374-2(5) of the Commercial Act merely provide that “If the court determines the purchase price of shares, it shall calculate it at a fair price, taking into account the company’s financial status and other circumstances.”

In particular, there are some specific provisions in Article 54 of the Enforcement Decree of the Inheritance and Gift Tax Act with respect to the method of assessing unlisted stocks, such as the detailed provisions in the method of assessing unlisted stocks. However, the relevant laws and regulations governing the method of assessing unlisted stocks apply different standards according to their purpose of establishment. Therefore, in determining the purchase price of stocks by shareholders opposing to a merger in accordance with the provisions of the Commercial Act, the court is not bound by the provisions of the relevant laws and regulations, nor should one or more of them be employed or considered, and the fair value of stocks to be purchased can be calculated by utilizing a variety

Generally, in a case where a shareholder opposing a merger or transfer of business of a company claims the purchase of an unlisted stock to the company, if there is a normal example of the transaction that properly reflects the objective exchange value with respect to the relevant stocks, such transaction value shall be deemed the market price and the purchase price of the stocks shall be determined. However, if no such transaction example exists, various appraisal methods such as the market value method generally accepted as to the evaluation of unlisted stocks, net asset value method,

Since the relevant laws and regulations governing the evaluation method of unlisted stocks apply different standards according to their purpose of establishment, any one method of evaluation (e.g., the method of evaluation under Article 84-7(1)2 of the Enforcement Decree of the Securities and Exchange Act or the method of evaluation under Article 54 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act) cannot be readily concluded that any one method of evaluation (e.g., the method of evaluation under Article 84-7(1)2 of the Enforcement Decree of the Securities and Exchange Act, or the method of evaluation under Article 54 of the Enforcement Decree of the Inheritance Tax and Gift Tax

B. Specific evaluation factors in the instant case

(i)market and market value;

First of all, we examine whether there is a normal transaction practice that properly reflects the objective exchange value that can be recognized as the “market price” as the purchase price of the instant shares.

The applicants did not properly form the over-the-counter market for the instant shares at the time, and the purchase of shares from 108 shareholders of Sclon was made between the related parties. Since the purchase of shares was made through an individual contract and it was not a transaction between many and unspecified persons, it cannot be viewed as a “market price” as well as a “market price” as an assessment factor in supplementary assessment methods.

On the other hand, the principal of the case asserts that Samsung C&M purchased 48,558 won per share from the Japanese TOWA company and the Hanyang P&M company around 201. Before the merger of the case, Samsung C&M traded 50,000 won or 62,00 won per share in the over-the-counter market. The purchase of 119,730 won per share from 108 shareholders of C&M to 85,000 won per share with a higher amount of 119,730 won based on the free will between the parties, it conforms to the principle of shareholder equality, the principle of capital adequacy, and even if not, it can be seen as a “market value” as an assessment factor in the supplementary assessment method.

In light of the records of this case, Samsung Electronic Co., Ltd. purchased KRW 119,730 per share of 10,00 from 108 shareholders of Samsung Heavy Co., Ltd. at 108, and it constitutes approximately 14.97% of the total number of shares issued (80,000 shares) and approximately 68.5% of the total number of shares issued at 3rd Co., Ltd. at 10,000 won per share of Samsung Electronic Co., Ltd. (the above transaction was conducted at 10,000 won per share of 4th Co., Ltd.). The above transaction was conducted at 85,00 won per share of 10,000 won per share of 10,000 won per share of 40,000 won per share of 10,000 won per share of 10,000 won per share of 10,000 won per share of 15,012.

(2) Asset value;

The applicants claim that the value of the industrial property right, 142,414,00 won, which is reflected in the financial statements, is merely counted as acquisition cost, such as patent application cost, and thus cannot be considered as real value, considering the research and development costs and the current status of the patent held at the time of the merger of this case, the holding of the patent right, which is a semiconductor equipment company, is very important in the corporate value. In addition, the applicants claim that the value of the industrial property right, 142,414,00 won, which is reflected in the financial statements, is merely counted as acquisition cost, such as patent application cost, etc., based on the statement of financial position prepared in accordance with the financial statements (9,976 won per share when reflecting the publicly assessed individual land price).

In light of the records of this case, ① the sum of two parcels of land (2,586,00,000 won) indicated on the statement of financial position of the Sclon (2,576,595,000 won) is considerably less than the aggregate of the officially announced values (3,876,595,000 won). ② The Sclon's nature of the type of business is the shipbuilding and profit-making structure, and it is more important than the assets of a patent, etc. rather than the assets of the land. ③ However, the financial statements of Sclon include 142,414,00 won for industrial property rights and 60 won for 290,000 won for 290,000 won for 40,000 won for 290,000 won for 290,000 won for 29,000 won for 29,000 won for 5,000 won for 29,000 won for 1,000.

(3) Profit value

(A) The party's assertion

In calculating profit value, applicants do not properly reflect profits from new businesses, such as inspection equipment of Sclon and logistics automation equipment, if they are based on past profits. Since they have been increasing continuously since 2010 and net profit per share, future profits should be considered. As such, 577% of the estimated growth rate for Samsung Electronic and its related companies as a semiconductor company, like the third anniversary of the third anniversary of the third anniversary of the increase in sales of Samsung Electronic and its related companies, can also be applied to Sclon. Thus, according to the method of assessment stipulated in the Financial Investment Services and Capital Markets Act and the Regulations on the Issuance and Public Notice, etc. of Securities (hereinafter “Publication Regulations”), 2010 per share should be calculated by applying the estimated growth rate of ScS based on estimated profits (82,298 won per share), or 2010 per share based on the estimated net profit of 20 years per share, 2013 and 3010 per share per share (excluding the estimated net profit of 2010 per share).

On the other hand, the method under the Disclosure Regulations can be determined by the person’s own supervision and assessment method based on the presumption of future profits. The results of the two companies are moving in the opposite direction due to the characteristics of the type of business to semiconductor equipment manufacturing business and equipment remodeling business, and it is improper to predict future profits by comparing the expected growth rates stated in the NA investment prospectus. Therefore, the profit value should be calculated according to the evaluation method under the Inheritance and Gift Act. In addition, in calculating the purchase price of stocks, barring any special circumstance, the value of stocks should be determined at the time prior to being affected by the transfer of business, etc. (Supreme Court Order 2005Ma958 Decided November 23, 2006). Thus, except for the year 2012, which is the date of the resolution of the board of directors for the merger of this case, the method of calculating the credibility and objectivity per share should not be determined differently by the method of securing profits and objectivity of 209, 2010, 2011.

(B) Issues of future profit value

However, as seen earlier, it is true that the principal of the case in the merger process in this case calculates the value of profits based on the estimated future gains in the case of S, and in the case of Sclon, the amount of 85,000 won per share, which is the market price. However, the applicant’s assertion that it is necessary to calculate the value of profits of Sclon by applying the appraisal method under the Disclosure Regulations based on the estimated growth ratio of Sc. In the case of Sc., ① forecast of future earnings is difficult to secure objectivity, and the amount may vary depending on the person’s authority and supervision. However, in the situation where the results of Sclon already revealed the fact that it is difficult to apply the appraisal method based on the Disclosure Regulations issued in 2013 (2, 2012, 2013) in the case of Sclon, the applicant’s materials submitted by the applicants are not enough to accept the similarity between the structure and characteristics of Sclon’s business to the extent that it can be applied to the evaluation of stock value of Sc.

(C) Method of valuation of earnings under the Inheritance and Gift Tax Act

따라서, 앞서 살펴본 시장가치, 자산가치, 장래 수익가치는 모두 세크론의 실상, 관련 자료의 부족 등으로 이 사건 주식매수가액 산정방식으로는 적절하지 않으므로, 세크론 주식의 매수가액은 상증법상 평가방법에 따른 수익가치만을 기초로 산정함이 적절하다 할 것이다. 다만, 평가대상 3개년에 이 사건 합병을 위한 이사회 결의가 이루어진 2012년을 포함시킬 것인지가 문제되는데, ① 합병 등이 이루어진 연도의 실적을 배제하라는 위 대법원 결정의 취지는, 합병 등에 따라 대상회사의 실적이나 시장에서 주식의 거래가격이 변동하는 경우 이러한 영향을 받기 전을 기준으로 수익가치를 산정하여야 한다는 것으로 이해되므로 그러한 영향을 받지 않는 경우라면 그 기간을 포함시키는 것이 오히려 수익가치 산정의 적정성을 더욱 높이는 방법이라 할 수 있는 점, ② 세크론 합병 이후의 실적은 사건 본인의 주장에 의하더라도 반도체 시장의 사이클에 따른 것 일뿐 여전히 삼성전자 및 그 관계회사의 매출에 크게 의존하고 있고 특별히 합병에 따른 영향은 보이지 않는데다(더욱이 세크론의 합병결의와 이후의 합병절차가 2012년도 10월 중순분터 진행되었기 때문에 합병이 실적에 미친 영향은 미미했을 것으로 보인다), 앞서 본 바와 같이 장외시장에서 세크론 주식의 시장가격이 형성되었다고도 볼 수 없으므로, 2012년도를 포함시키더라도 적정한 매수가격의 산정에 어떠한 영향을 주지는 않을 것으로 보이는 점, ③ 앞서 본 대법원 판례와 같이 공정한 매수가격의 결정은 법원이 회사의 재산상태 등을 종합적으로 고려하여 그에 가장 적합하다고 판단되는 방법에 따라 산정하면 족한 것으로, 반드시 합병년도를 제외한 3개년을 가중평균하는 방식으로 수익가치를 산정하여야 하는 것은 아니고, 회사의 매출추이, 합병 경위 등의 특수성을 고려하여 산정방법을 달리 할 수 있는 것인 점, ④ 세크론의 2005년부터 2012년까지의 매출, 당기순이익의 추이를 살펴보면, 2005년부터 2007년까지 꾸준히 매출이 증가하며 이익을 내다가 미국 금융위기가 시작된 2008년에 55억 원의 적자, 2009년에 최저 매출(약 707억 원)을 기록하였으나, 그 이후로 2010년(매출 약 1,669억 원 당기순이익 약 79억 원), 2011년(매출 약 2,096억 원, 당기순이익 약 120억 원), 2012년(매출 약 2,842억 원, 당기순이익 173억 원)에 계속적으로 매출과 당기순이익이 증가한 것을 알 수 있는 점, ⑤ 세크론의 재무제표에 따르면, 2009년과 2010년에 신규사업(검사장비, 물류자동화장비 등)에 대한 투자가 이루어져 2011년부터 그 성과(2010년에는 매출은 없이 연구개발비, 투자비만 지출되었으나, 2011년부터 검사장비 약 53억 원, 물류자동화 장비 141억 원의 매출이 이루어짐)가 나타나기 시작한 것으로 보이는 점, ⑥ 사건본인은 2010년 내지 2012년이 엔고 현상 및 스마트폰 AP 판매증가로 인한 삼성전자의 특정장비(검사보조장비 Prober)의 일시적인 수요증가에 힘입어 세크론 창사 이래 가장 실적이 좋았던 극히 예외적인 구간으로 세크론의 평균 실적을 반영하는 것이 아니라고 주장하나, 세크론의 경우 2008년, 2009년에 실적 부진을 겪은 탓에 2010년 매출액은 2007년의 수준을 회복한 것이고, 2012년 매출액은 2007년의 2배에 못 미치는데, 세크론 매출에서 절대적인 비중을 주4) 차지하는 삼성전자의 같은 기간 매출액 주5) 증가추세 및 2011년부터 성과가 나타나기 시작한 신사업(검사장비 및 물류자동화장비), 세계시장에서 삼성전자 스마트폰의 판매호조를 고려하면, 예외적인 호황기로만 치부하기 어려운 점, ⑦ 세크론은 2012년 4/4분기 및 2013년 전반기에 실적이 하락하였는데, 설령 사건본인이 주장하는 반도체 장비시장의 경기사이클에 의한 것이라고 하더라도, 기억의 가치라는 것은 다양한 변수들의 영향 속에 늘 변동하는 것으로 향후 경기사이클에 따라 다시 실적이 좋아질 수도 있는 것이고, 어차피 주식매수가액결정에서의 수익가치의 평가라는 것이 어느 일정 시점에서의 회사의 수익성을 반영하는 것이 불가피하고 기업의 항구적인 상태를 나타낼 수는 없다고 보이는 점, ⑧ 여러 언론매체에서도 반도체 장비산업의 규모가 PC 외에도 주6) 스마트폰 등의 성장에 따른 반도체수요 및 설비투자의 확대로 꾸준히 성장할 것으로 예측된 점 등을 종합적으로 고려하면, 이 사건 합병 당시의 세크론 현황과는 크게 동떨어진 2009년을 제외하고 합병을 위한 이사회결의가 이루어진 2012년을 포함시키는 것이 그 당시 세크론의 적정한 주식가치를 반영할 수 있다고 보여지므로, 결국 2010년, 2011년, 2012년 3개년의 실적을 가중평균하여 수익가치를 산정하는 것이 타당하다.

(c) Determination of a bid price;

(1) As seen earlier, the market value of the three-dimensional stocks cannot be found, and the value of assets is not appropriate to reflect the amount calculated by excluding the value of assets, such as patent rights, as an assessment factor to calculate the purchase value of stocks. Thus, in the case of the three-dimensional loan, it is appropriate to assess the purchase value of the instant stocks on the basis of the market value and the value of assets without considering the market value and the value of assets.

(2) At the time of the instant merger, the profits value of the Sclon is calculated as the weighted average of 177,358 won per share in accordance with the method of appraisal under the Inheritance and Gift Tax Act for the year 2010, 2011, and 3 years 2012. Therefore, it is appropriate to recognize the said amount as the purchase price of the shares of the principal of the instant case.

4. Conclusion

Thus, the fair purchase price of shares of the principal company shall be KRW 177,358 per share, so it shall be decided as per Disposition.

Judges Lee Dong-chul (Presiding Judge) (Presiding Justice)

1) As of October 18, 2012, the date of the instant merger resolution, Samsung Industries owned 89.8% of the instant principal’s shares, 93.0% of the Sclon’s shares, and 100% of the GaS’s shares.

Note 2) The current Financial Investment Services and Capital Markets Act

3) With respect to profit value, the valuation method under the Disclosure Regulations is the way to divide the estimated profit of two years in the future into capital exchange rate under the assumption that the estimated profit continues in the future. On the other hand, the "evaluation method under the Inheritance and Gift Tax Act" is the way to divide the weighted average of net profit and loss in the past three years before the evaluation base date into the interest rate determined and publicly announced by the Minister of Strategy and Finance under the assumption that the estimated profit continues in

Note 4) For the last three years of the Sclon, the weight of the sales of Samsung Electronic and its related companies accounts for an average of 82.3% in total sales, and the sales and profit structure depends on Samsung Electronic, etc.

Note 5) The sales amount of Samsung Industries recorded approximately KRW 98:5,10 billion in 2007, KRW 121:29, KRW 120 billion in 2008, KRW 136:320 billion in 2009, KRW 154, KRW 600 in 2010, KRW 1647,000 in 201, KRW 201, KRW 1000 in 201, and KRW 201,00 in 2012 in 2007.

(6) The increase in the sales of prober equipment, which the instant principal voluntarily contributed to the 3rd anniversary of the 2012 Sclonies, was caused by the increase in sales of the soft process that was produced in Samsung Electronic and entered in smartphones, such as S3 and Aphone 5.

Note 7) 7,355 = 5,884,397,123 ± 800,000 shares (Tiversary trees less than zero won; hereinafter the same shall apply)

8) 15,054 won = 12,043,50,553 ± 800,000 won ± (12,043,550,553). Meanwhile, the principal of the case asserts that the 90,014 won is 11,614,386,464 won (14,518 won per share) in 2011 by accepting a stock appraisal report by the Korea-U.S. accounting corporation, but the applicant pointed out that the amount of net profit and loss in 201 is 11,614,38,235,735 won, not 2,456,742,395 won in corporate tax, and special rural development tax is 51,154,261 won, not 51,154,261 won in special rural development tax, and the amount of net profit and loss in 2014,254,2547,2547,201.

Note 9) 22,984 = 18,387,335,380 Won ± 800,000 note