차입매수와 이사의 업무상 배임- 거래의 기본구조와 내재된 법률상의 쟁점을 중심으로 -

As a popular method of corporate acquisition, a leveraged buyout(or LBO) is a transaction in which an acquiror company purchases the stock of a target company with borrowed money, using the target’s assets as collateral for the loans. An LBO may be thought of as three simultaneous transactions; First, the lender advances funds to the acquiror, usually through a special purpose company(SPC), second, the acquiror uses the funds to purchase the target company and effects a merger between it and the SPC. Third, the acquiror, now owning the target, causes the target to collateralize the original loan by issuing payment guarantees and liens on its assets to the lender. In this manner, the acquiror uses the target’s assets rather than its own to finance the LBO transaction. This transaction can be detrimental to creditors of the target company. As the borrowed money passes to the target’s existing shareholders and the LBO lenders receive security interests in the assets, the target’s equity securities are replaced with senior debt. In the U.S. corporate law, in cases where leveraged buyouts have been followed by the insolvency or bankruptcy of the acquired company, the financing transactions involved in the acquisitions have been challenged as violative of statutory prohibitions of fraudulent conveyances. However, the fraudulent conveyance law is the civil remedy between parties involving the LBOs. In Korea, an LBOs is emerged since 2000s and there are well-designed LBOs transaction including a management buyout deal. However, recently the Supreme Court held that the director who took the lead the LBO transaction received the criminal liability for the breach of trust. The Supreme Court`s negative interpretation makes LBO deals the dormant strategy for M&A in Korea. Focusing on the benefit of LBOs deal as a key solution for corporate restructuring or agency problems, this article suggests that the Court turn the negative view as to the LBO strategy.