LBO에 대한 정당한 규제-대법원 2004도7027 판결 비판적 검토-

Leveraged Buy․Out (LBO), which lets a target company offer its assets as security for buyer's debt incurred to purchase the shares of the target company, has both advantages and disadvantages. While the advantages of LBO are activation of M&A with less financial resources, synergy effect, re․organization of corporation, the usage of high․leveled business and financial skills, leverage effect as well as improvement of business activities, its disadvantages are the increase of corporate debt, threats to creditors of the target company, the possibility of bankruptcy, conflict of interests between shareholders and directors, and between shareholders and investors, and the potential abuse of LBO by private equity fund which pursues only for short․term gains from re․sale. Advanced market economies including the U.S., U.K, Germany, Italy and Japan, have developed case laws, regulations and statutes regarding LBOs in the civil or corporate law area. The U.S. judiciary body, once liberalizing LBO deals, has developed entire fairness doctrine for fiduciaries' liability, requiring compliance with procedural rules e.g. disclosure of material information. On the other hand, member countries in EU, which adopted strict prohibition against LBO under the Second Directive Art.23(1), gradually, however, have widened exemptions through revision of their domestic civil or corporate laws. Japan also allowed LBO by adopting Industrial Revitalization Corporation Act. The Supreme Court of Korea, on the other hand, issued a decision (2004도7027) penalyzing an LBO which turned out to be successful through purchasing an ailing company under legal management. This thesis analyzes the elements of breach of trust in office (Criminal Code Art.356), thereby proffering unique theories, such as implied approval by principal through speculative trading analogy, decision of harm in light of corporate rehabilation plan. It argues that the LBO, complied with corporate law and related procedures including full disclosure of material information, may be legitimized. The application of breach of trust in office (cc.356) to LBO will cause more harms to corporations than benefits as potential benefits from restructuring the ailing company is driven away. The maintenance of balance between possible advantages and disadvantages of LBO can be more effectively achieved through the application of corporate law and enactment of financial law including share․mortgage, limitation of financing to a certain level, and minimum owned․capital․input requirement.