LBO/MBO에 관한 법적 문제 ―이사의 책임 및 소수자주주보호의 관점에서―

The first purpose of this paper was to investigate legal issues surrounding LBO/MBO based on judicial precedents of Delaware, U.S.A. Second, this research examined present Korean legal situations in relation with Delaware's LBO/MBO cases. Finally, it presents the application scheme to improve Korean legal status of LBO/MBO. Management teams who are participating MBO carry two responsibilities. The team needs to make individual profits and to maintain a new obligator status. These obligations might create severe conflict. The Delaware Court has examined the effectiveness of MBO based on the performance of the participating team's role as a new obligator rather than the danger of the conflict. Furthermore, The Delaware Court has judged that intrinsic fair examination is necessary for MBO. In upcoming years, there is a strong possibility of activation and expansion of LBO/MBO market in Korea with various factors are supporting the possibility. Therefore, establishing norms which are examination by market itself and legal judgement for legitimacy of LBO/MBO conditions is critical. At first, responsibility of participating trustees has to be precise. Specially, in case of the participating trustees open the issue to corporation, obtaining approval from the special committee which is individual and objective, and following approval procedure from the board of trusts and the general meeting of stockholders. Legislation and construction need to be built in direction with that the participating trustees are not legally responsible. Next, a protection plan for the small number of stockholders who could be expelled out in relation with merger from LBO/MBO need to be established. A rational expelling plan of the small number stockholders for reducing expenses to manage stockholders, to improve effectiveness of management, and to protect the small number of stockholders. For this, legal repletion such as imposing the proof responsibility of fair transaction based on the general standard to the corporation or controlling stockholders is needed. In case of LBO/MBO, issues of protecting the corporation bondholder could be raised from the aggravating corporation assets resulted from offering mortgages by management team. But if the information of LBO/MBO notified in appropriate time, any special problem would not be raised even under the present legal system. In another words, the bondholder who could have disadvantage in repayment could receive the repayment or mortgage by protesting upon the notification of LBO/MBO. There also is possibility that the bondholder could exercise the bondholder repealing rights against the action of offering mortgage using the corporation assets by LBO/MBO. In conclusion, establishing legislations and constructions are necessary in direction of allowing LBO/MBO within rational extent rather than prohibiting without variation. And this suggestion is based on the understanding that it is an effective system to activate restructuring of corporations. Further, the law should legislate and apply rational regulation toward new economic status rather than unconditional prohibition.