LBO 규제체계의 비교분석과 합리적 규제방안의 모색 -유럽․미국법상 회사의 금융지원규제를 중심으로-

The Leveraged buyout(hereinafter LBO) is any transaction whereby the target company which is the subject of an acquisition, recapitalization, redemption or similar transaction, assumes responsibility, primarily or secondarily, on either a secured basis, for repayment of debt which is incurred to purchase, or make a distribution with respect to, the target company's equity. Recently Korea supreme court is judicially divided in deciding the criminal responsibility against the executive directors giving a collateral on the target's assets for securing the aquisition financing, or merging the acquirer and target without furnishing a security. The debate over the responsibility and legality of LBO transactions has been continuing in the academic world. In short, LBO is in a state of legal uncertainty in the M&A market. The legal regulatory environments surrounding LBO are required to be reasonably changed for meeting market demands of the transactions. It's because LBO transaction, which is considered as one of the modern M&A techniques for the economic rehabilitation and corporate restructuring, is expected to be substantially increased in the corporate world in the near future. The regulation of LBO has been competitively reformed in European countries for maximizing its economic effects. The England and Italia had played leading roles in the regulatory reforming movement since 2000. The regulatory types of LBO in the world can be classified into two, European and American one. In the European type, LBO is regulated by the prior prohibition or restraint on the target's financial assistance to the target's stock purchase on the base of the doctrine of capital maintenance under the corporation law. Meanwhile, in the American type, LBO participants are responsible for breaching the director's fiduciary duty in the corporate law and the fraudulent leverage buyout is legally void under the federal and state fraudulent transfer laws. In this paper, the two types are introduced and comparatively analyzed, and the European type is concluded as recommendable for the future Korean regulatory reforms. Because the European one is basically similar to Korean corporation law in both legal doctrine of capital maintenance and legislative philosophy. Especially Italia's unique regulatory regime on the merger leveraged buyouts is meaningfully benchmarked for designing new regulatory policy. In conclusion, some reasonable legislative recommendations are suggested as follows for rehabilitating LBOs. Firstly, the target's financial assistance should be approved in the shareholder's special meeting, some requirements of procedural and substantial fairness should be met and the assistance should be limited to the extent of target's distributable assets. Secondly, fairness of merger leveraged buyouts should be ensured in both procedure and substance for protecting the target's present and future creditors and minority shareholders. But regulatory exceptions, in which the rigid procedural and substantial requirements are not required for the financial assistance, should be made to the failed target company to be inevitably restructured, Lastly, criminal responsibilities against LBO participants should be assumed only in the case of clearly intentional illegal assistance.