LBO와 손해

Abstract

LBO is an transaction where an acquiring company finances mainly with the funds borrowed from banks etc. and secured by a target company's asset. The Korean Court recognizes it as a shameless crime because the acquiring company never spends its money at the target company's expense. As such the Court regulates the transaction as crime of breach of trust under the criminal code. It results in severe decline of the transaction in a financial market. This paper would like to point out the problem of such approach. Especially it turns its light on the analysis of the condition, damages of the crime. Interpretation of damages is definitely a significant task in applying such crime to a specific case. However, it remains rarely analyzed. The court finds the acquiring company suffers damages by creating the security interests over its assets itself without any persuasive or convincing reasoning for it. It does interpret the realization of damages includes the risk of damages. Further, it invokes the Entity Theory to reach such finding. I would analyze the condition, damages more thoroughly. For such analysis, my question starts with “who is the trustee damaged?”. It links with the question, “To whom the director owes his/her fiduciary duty? to a corporation or to shareholders? what about the creditors?”. It goes further to the inquiry, “should the shareholders’ interest and the creditors’ interest be considered?”. While answering to these questions, I would like to criticize the Entity Theory pointing out misunderstanding and fallacy in it. Finally, I want to provide the guideline for a positive and successful LBOs from the view point of damages. Although LBOs is frequently used in an international market, it is still new to us. As the many countries are trying to find each country's own and appropriate rules and regulations, so we have to mole our own regulating tools. For this, experiencing as many cases as possible in real world is of essence. Current court’s attitude in regulating LBOs contains severe problem to make the transactions shrunk which means the farewell from such establishment of a reasonable regulating method. The aim of this paper is to secure the predictability in regulating LBOs by providing the outline of healthy LBOs’ aspect.