[1] The method of determining the purchase price in a case where a shareholder who objects to a merger, etc. of a stock-listed corporation requested a corporation to purchase listed stocks pursuant to Article 191(1) of the former Securities and Exchange Act, but failed to reach an agreement on the purchase price, and the shareholder or

[2] In a case where shareholders who oppose a merger of a stock-listed corporation filed a claim for the purchase price determination with a court where they did not reach an agreement on the purchase price, the case affirming the court below's determination of the purchase price of listed stocks in accordance with the method of calculation as stipulated in Article 191 of the former Securities and Exchange Act and Article 84-9 (2) 1 of the former Enforcement Decree of the Securities and Exchange Act, after rejecting the claim of shareholders that the share price of listed stocks did not reflect the corporation

[1] Article 191 of the former Securities and Exchange Act (repealed by Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act, Act No. 9635 of Aug. 3, 2007), Article 84-9 (2) 1 and 2 of the former Enforcement Decree of the Securities and Exchange Act (repealed by Article 2 of the Addenda to the Enforcement Decree of the Financial Investment Services and Capital Markets Act, Presidential Decree No. 20947 of Jul. 29, 2008) / [2] Article 191 of the former Securities and Exchange Act (repealed by Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act, Act No. 9635 of Aug. 3, 2007), Article 84-9 (2) 1 of the former Enforcement Decree of the Securities and Exchange Act (repealed by Article 2 of the Addenda to the Financial Investment Services and Capital Markets Act, Presidential Decree No. 20947 of Jul.

ABS Investment Co., Ltd and 53 others (Law Firm Digital Ballast, Attorneys Lee Lee & Lee, Counsel for the plaintiff-appellant)

A.S.S. Co., Ltd. (formerly: Eastern Industry Co., Ltd.) (Law Firm Rate, Attorneys Kim Sejong-si et al., Counsel for the plaintiff-appellant)

Seoul High Court Order 2009Ra1 dated May 20, 2009

All reappeals are dismissed.

The grounds of reappeal are examined.

1. Where a shareholder opposing a merger, etc. of a stock-listed corporation requests the relevant corporation to purchase listed stocks pursuant to Article 191(1) of the former Securities and Exchange Act (amended by Act No. 8635, Aug. 3, 2007; hereinafter the same shall apply), and the shareholder or the relevant corporation requests a court to determine purchase price because there is no agreement between the shareholder and the relevant corporation on the purchase price, the stock-listed corporation’s market price generally can be deemed to have been formed by investment decisions based on the information on the relevant corporation, such as the company’s asset content, financial status, profit-making, and future business outlook publicly notified pursuant to the relevant laws and regulations. The shareholder of the stock-listed corporation is in accordance with the reasonable expectation of the relevant shareholder in that it takes investment action based on the market price on the premise of the normal market price price, and thus, the court should, in principle, calculate purchase price based on the market price. However, the court may reasonably determine purchase price before the date of application for purchase price under Article 19 of the former Enforcement Decree of the Securities and Exchange Act (see Article 29 of the former Enforcement Decree).

Furthermore, in cases where the pertinent listed shares are not traded on the securities market (Article 84-9(2)2 of the former Enforcement Decree of the Securities and Exchange Act) or where it is determined that the market price was affected by unlawful means impeding the function of the market, such as price manipulation, etc., the objective value of the relevant stock-listed corporation may be calculated by comprehensively taking into account the situation of the relevant corporation or characteristics of the relevant business type, etc., by excluding the market price or reflecting other evaluation factors, such as net asset value or profit value, together with the market price. However, merely because the market price is somewhat different from the price calculated based on net asset value or profit value, the said market price shall not be readily concluded that the said market price does not reflect the objective value of

2. According to the reasoning of the decision of the first instance as cited by the court below, the court below rejected the applicant's assertion that the stock price of this case, which was traded on the securities market for the reason that there was an excessive situation of the stock of this case or a reduction of capital, and the case of over-the-counter trading presented by the applicants, was not properly reflected the objective value of the principal of this case, a stock-listed corporation, on the ground that the market price of this case, which was traded on the securities market, was an amount higher than the management premium due to mass stock sale, and maintained the first instance judgment which determined the daily closing market price of this case, which was traded on the securities market of this case for two months, one month, and one week, based on the method of calculation prescribed in Article 191 of the former Securities and Exchange Act and Article 84-9 (2) 1 of the former Enforcement Decree of the Securities and Exchange Act.

In light of the above legal principles and records, the above measures of the court below are just and acceptable, and there is no error in the misapprehension of legal principles as to the calculation of purchase price of listed stocks as otherwise alleged in the grounds of

3. Therefore, all reappeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)