LBO에 관한 법적문제에 관한 연구 －민법과 상법적 문제를 중심으로－

Leveraged Buyout(LBO) is that the purchase of a publicly held corporation's outstanding stock by its management or outside investors, financed mainly funds borrowed from investment bankers or brokers and usually secured by the corporation's asset. The acquisition of another company using a significant amount of borrowed money (bonds or loans) to meet the cost of acquisition. Often, the assets of the company being acquired are used as collateral for the loans in addition to the assets of the acquiring company. The purpose of leveraged Buyout is to allow companies to make large acquisitions without having to commit a lot of capital. Because of this high debt/equity ratio, the bonds usually are not investment grade and are referred to as junk bonds. Leveraged Buyout has disadvantage that Buyout lead to the eventual bankruptcy of the acquired companies or increase of credit risk. Meanwhile the Leveraged Buyout have merits(tax shielding through leverage effect in The Corporate Tax Law , efficiency gain etc.). Supreme Court condemn taken-over company's director to malfeasance in office on the authority of theory that shareholder's interest is different from company's interest. But Supreme Court' judgement contradict business ethics that CEO should persue the best interest of shareholder. Pursing the question of directors' responsibility is frequent and tight because nowadays, in Korea, open and aboveboard business management has been strongly requested and the position of shareholders is strengthened. Specially, in the Supreme court decision on whether the new fund loan for the purpose of generation is to be cancel as the fraudulent act, there is the need to examine the part whether the management determination principle of creditor's annulment rights with respect to the responsibility of the directors in terms of not to interfering with the debtor's property management under the respect for the debtor or beneficiary's specific decision. The commercial law theory, 'Business Judgement Rule' should keep as the directors' responsibility on LBO(the assets of the company being acquired are used as collateral for the loans in addition to the assets of the acquiring company). Put it in a nutshell, the director's decision on LBO for the purpose of regeneration must respect in Business Judgement Rule. Furthermore we try to be harmony with company,shareholders and creditors when it comes to judging the legal problems of LBO.