차입매수(LBO)와 배임죄

Abstract

Even a business takeover by LBO (Leveraged Buyout) should be punished if it forms one of components of breach of trust under the current criminal law. In a LBO, the acquiring company borrows the acquisition cost mainly from the outside and after the acquisition, the acquired company is actually responsible for debt repayment and so the risk of bankruptcy is essentially to increase because of the debt burden of the acquired company, which makes one of the problems of LBO. Therefore, the core issue in the control of LBO might be how to control appropriately the increase of the bankruptcy risk of the acquired company using what kinds of means. On the other hand, despite the negative aspect of the LBO, it's undeniable that it could economically boost the exterior stability and trustworthiness of the acquired company, as one of its positive aspects. Particularly, direct application of punishment power might make plenty of M&A skills for management rationalization unreasonably discouraged. Seen from the nature of the criminal law - complementation and usability as the last resort - what is proper under the circumstances is to block such risk in advance using regulations from the civil law and business practises rather than control using punishment power. Therefore, worthy of consideration is the argument that reasonable guidelines for LBO should be prepared as a prior regulative means rather than regulation by the criminal law, and its compliance and internal control system should be reinforced. Anyhow, the current criminal law punishes breach of trust and if LBO caused the danger of loss occurrence, perceived by the engaged persons and they did so more for their personal interest, it would be hard to deny that it forms a crime according to the strict interpretation of components of breach of trust on the criminal law. Possible loss of minor shareholders and creditors should the borrowed takeover be widely accepted must also be considered.