會社法상 LBO의 背任罪 成否와 立法課題* －신한 및 한일합섬 LBO 판결을 계기로 하여－

Recently a crime of trust breach against the directors was rejected in the Hanil-hapsum LBO case by the Pusan district courts, although it was held guilty in case of the Shin-han LBO transaction by the supreme court in 2008. A legal issue on the crime in LBO transactions is attributable to the area of criminal law, but substantial core issues in deciding it are closely related to the corporation law. In this paper, facts and legal reasoning of the court decisions between the two cases are compared, and some legal issues on the criminality are thoroughly analyzed in the perspectives of corporate law. This paper stresses that (1) LBO transaction exists depending on the shift of the acquirer’s loan liability from the third parties to the target company, (2) whether or not the loss was caused to the target, which is legally required for a judgment of guilty, should be decided according to the real entity theory independent from the loss of shareholders or creditors, and (3) because most of LBO transactions belong to the self-dealing transactions, in which the interests between the real acquirer and the target company are seriously conflicting, whether or not director’s fiduciary duties have been executed in providing target’s asset as a collateral or in proceeding merger between the acquirer and the target should be thoroughly examined by the court, focusing on fulfilling the entire fairness legally required in both procedures and substances. In conclusion, this paper proposes some legislative recommendations for the reform of some legal barriers to doing LBO transactions under the current law and policies. First, self-regulatory so called ‘Fair Guide line for LBO Transactions’, as in the Japanese MBO report published in 2007, is necessary for securing and maintaining the stability and legal certainty in LBO transactions. Second, current prohibition of the target’s financial assistance to its directors or substantial shareholders, etc. with their purchasing the target’s stocks needs to be reasonably mitigated. Third, regulation of the speculative or abusive LBO transactions should be more quitely strengthened by way of enhancing financial supervising or reforming tax policies.