차입매수행위와 배임죄의 성립

While in the United States, LBO is considered as one of management strategies and regulated by civil rules rather than criminal rules, in Korea the position of the Supreme Court in the ruling of Hanilhapsum's LBO of 2010 is that breach of trust can not apply indiscriminately to all major actors involving in company acquisition by way of LBO in the state of non existence of specific law on LBO. And then it clears that each cases should be judged individually after examining the concrete process of LBO whether it fills the elements of breach of trust. In contrast, the majority opinion in Korea criticizes the Supreme Court's rulings that acts of LBO basically satisfy objective elements of breach of trust. The majority maintains that acts of LBO for company's M&A are necessary in its efficiency and economic necessity. When judging criminality of a particular act, two principles should be observed. The first one is whether the act could fill the element of criminality according to general criminal system. And the second is that rulings should be made consistently when judging whether particular act could meet the elements of breach of trust or not. Only in case of maintaining those two principles, rulings on LBO cases can provide action rules for actors and legal safety-net to society, and also obtain fairness of judgement. The paper tries to illuminate that various types of LBO transactions should be punished basically for its filling the elements of breach of trust.