차입매수(LBO)에 대한 형사책임- 대법원의 배임죄 판단에 대한 검토 -

Abstract

This Paper examines the legal problems of Laveraged Buyouts(LBO) under the current system of criminal law from the perspective of the duties and responsibilities of the director of the target company attempting a LBO. The problem is whether, in the case of a LBO led by the management of the target company, its director is in violation of criminal law on account of malfeasance if he borrows the funds necessary for the takeover on the security of the assets of the target company. In relation to this question, the Korean Supreme Court recently ruled against a director who attempted LBO in the transaction of M&A of Shinhan Ltd on account of malfeasance. This judicial judgement provoked the debate the issue of the violation of the breach of trust of LBO. There are some negative view which insist that the transaction of LBO couldn’t be criminalized as malfeasance on account of the effectiveness and usefulness in the successful LBO. The Korea Supreme Court’s decision, however, covered not all the transaction of LBO as a guilty, thus it should be understood and judged case by case because of the diversity of LBO case. So to judge the act of director as a malfeasance, it is right to judge guilty after thinking of fiduciary duties, and the possibilities of breaching the duties, business judgement rule, the damages, criminal intents(mens rea). When we would view this matter from a different points, it could be considered whether a consenting of the target company(or shareholders) exist or not. Since it is difficult to say that the target company receives due compensation for offering its assets as collateral to the LBO creditor in the process of the LBO transaction, it must be viewed that the director of the target company who attempted the LBO can be held accountable to charges of malfeasance. The director of the target company has the rector of they of guaranteeing the profits of his tor of they of gnd its shareholders, while at the same time being the buyer of the target company, he has an interest in pursuing personal profits.