LBO는 배임죄인가 -2009도6634 판결과 2004도7027 판결의 비교를 중심으로-

In Korean criminal law, it is laid down that a breach of trust crime is punished. So LBO(Leveraged Buyout) problem is also dealt with the problem of constituting crime or not. It differs from American system which deals with the problem of civil law. The Supreme Court has had more negative than positive viewpoint about LBO. The most representative precedent was Shinhan instance. By the way the Supreme Court made a denial of a breach of trust crime in Hanilhabseom case in recent. In Korea, a breach of trust crime is stipulated in statute that "When a man in charge of another's affair disobeys his duty, and a profit for himself or a third party and by means of that inflicts damage on another people, he is guilty". Surrounding LBO case, especially most important requisite is requirement of inflicting damage on another people. The Supreme Court suggests a standard of judgment that when acquiring company wants to acquire another company through LBO technique, he must offer a kind of consideration which corresponds to acquired company's damages. It means that LBO will be guilty without getting anything in return. In Shinhan case, acquiring company did not provide any consideration to another party's damages. So It was convicted a breach of trust crime. On the contrary in Hanilhabseom case, acquiring company gave a good sum of money and security. Therefore the case resulted in an acquittal. Another standard of judgement is whether the merger go through or not. Hanilhabseom case succeeded in merger, but Shinhan case did not achieve merger. The financial world insisted that LBO is not guilty. But we have statute of a breach of trust crime in criminal law, so if in acquiring process acquired company makes a loss, it will be a very strong possibility that LBO is guilty. I agree with prudent judgment of the Supreme Court. I hope that more study and research is continued henceforth. According to this effort we can get better standard of interpretation and application about LBO.