차입매수(LBO)에서 배임죄 객관적 구성요건의 적용 －이른바 신한사건과 한일합섬사건에서의 대법원 판단을 중심으로－

This article is to examine the legal problems of leveraged buyout (LBO) under the criminal law in point of the possibilities of breaching the duties, and the damages. A leveraged buyout is a transaction in which an acquirer company purchases the stock of a target company with borrowed money, using the target's assets as collateral for the loans. In Korea this financing transaction involved in the acquisitions have been challenged as a violation of statutory prohibitions of a breach of trust. Recently the Supreme Court held that the director who took the lead the LBO transaction received the criminal liability for the breach of trust. In the most representative precedent, Shinhan case, the Supreme Court made a negative interpretation to the deals with the LBOs. But the negative interpretation covered not all the transaction of LBO as a guilty, thus it should be understood and judged case by case. Especially the Supreme Court denied a breach of trust crime in Hanilhabseom case. In relation to LBO, the korean criminal code require the inflicting damage on another people. Therefore the Supreme Court suggests the criteria for judgment that when acquiring company wants to acquire another company through LBO transaction, he must offer a kind of consideration which corresponds with the acquire company's damages. These decisions provoked the debate the issue of the violation of a malfeasance of LBO. It is a difficult problem to manage. But no one seems quite sure of the right way to address these issues. This paper deals with some consideration about this problem. As a result of this attempt, I hope that we will get a more advanced understanding about LBO problem and the solution.