담보형 차입매수(LBO)와 배임죄에 관한 판례평석 -대상판결 : 대법원 2008. 2. 28. 선고 2007도5987 판결-

After taking over the company that was undergoing a resurrection process, the defendant successfully stabilized the company, which resulted in a decrease in total liabilities, an increase in net assets, and a rise on a ranked list of contractors. Since this case may be viewed as a so-called successful secured leveraged buyout, it raises a question of whether using the assets of the target firm as collateral constitutes breach of trust. Because the High Court took all the circumstances into consideration to make a decision on whether the case constituted breach of trust, it decided that there was no breach of trust in this case, since there was much room for thinking that the defendant offered the collateral to raise funds necessary for takeover for the purpose of increasing the profit of the target firm. In comparison, the Supreme Court decided that each individual action of offering the collateral constituted breach of trust, and therefore decided that using the assets of the target firm as collateral constitutes breach of trust, since the target firm bore the risk of using the assets as collateral but the defendant failed to provide a benefit in return to the target firm in exchange for such risk. This case raises the question of what the proper way is for a major shareholder to enjoy the profit when his firm generates a considerable profit due to his efforts. Commercial law stipulates various regulations for deterring the major shareholder's pursuit of unfair profit, and in this light of the intent of the commercial law, offering the assets of the target firm as collateral without providing a benefit in return should not be allowed. The target firm, in this case, had to bear the risk of losing its savings and especially its real estate, and suffered a loss in the value of savings collateral and especially in the value of real estate collateral. However, considering that the collateral is the property of the target firm, that there is remaining value in the collateral, and that the collateral is canceled when the debt is repaid, it is reasonable to distinguish between the case when the collateral is forfeited and the case when the collateral is in danger of being forfeited. Furthermore, in the case of breach of trust, although penalties are stipulated for consummated offense and attempted offense, the sentence for attempted offense may be reduced to a less severe one than the sentence for consummated offense, so it is also of practical use to distinguish between the case when the collateral is forfeited and the case when the collateral is in danger of being forfeited. In this case, because the collateral was not forfeited, the defendant should be treated as having committed an attempted breach of trust.