차입매수(LBO)와 배임죄의 적용-신한LBO 및 한일합섬LBO 사례와 관련하여-

This paper discusses the rationality of criminal approach to the Leveraged Buyout(LBO) transaction. Within a decade the Supreme Court has provided two different results: a crime of trust breach against the directors was rejected in the Hanilhapsum LBO in 2010, but was guilty of the crime in Shinhan LBO transaction in 2008. Many academia analysis those cases and cast a lot of comments in favor and against that this paper deal with. In Shinhan LBO case, the Seoul High Court decided that providing assets of the target company as collateral is not itself the damages of the target company because, depending on the efforts, the normalization of management may be established. However, the Supreme Court reversed the decision and held that, for the breach of trust, the meaning of 'when-made for property damage’ is the happening of actual damage as well as the occurrence of the risk of causing property damage occurred. That means if there is causing the risk of damage, the breach of trust has been already established even though recovered the damage later. On the other hand, in Hanilhapsum LBO case, Pusan High Court held that even though the intention to repay debt obligations by using the assets of the target company is one of the motives of LBO, legal and economic effects of the merger are also importantly considered. The Supreme Court upheld the decision at this time. Acquiring company and the target company is one unity after merger, and each company's assets cannot be distinguished. Further, the protection of the independence of corporate legal entity and what the company’s losses should be treated as a separate issue. It is not appropriate to simply make a legal decision on LBO transactions considering only the increment or diminution of company's property. With the same purpose, in deciding the adequacy or rationality of LBO transactions, all relevant factors should be considered, including the target company's cash flow, future increases in yield, decrease in debt, or legal or economic effects of the LBO, etc.