합병형 차입매수(LBO)의 배임죄 성부 판단

LBO will be constantly evolving. Outflow where LBO by M&A in the breach that is fundamentally abnormal credit enhancement acquired substantial assets of the merged company does is the key. Hanil Synthetic Fiber LBO, the judgment of the Supreme Court judgment of whether or constitute the breach of the LBO merger type, were negligent in the analysis of the basic data needed to determine the intent and property damage. As a result, intent, and property damage was unable to determine whether. Also erred and fell loosely to its corresponding negative. However, in the future, such as the introduction of capital market deregulation, PEF for hedge funds and SPAC changes in growth when LBO is again to be activated. Misappropriation punishable borrowing the number of standing in the conflict areas of commercial law and criminal law issues in this flow, the greater the need for legal worries. Breach judgment of the LBO should be judged by core standards, the substantial outflow of assets. About the elements of the active element and owned much of the acquired company and its contents, the increase in debt and debt-to-equity ratio of SPC's degree, including possible repayment of external borrowings, future synergies, increase management efficiency and tax savings,leverage effect, ie financial management analysis should be based. LBO could be justified by the argument of the company that is a large accident should be on the lookout. However, for the reasonable restrictions of breach, element of crime including intent should be judged strictly by considering the characteristics of the corporate management judgment. Furthermore, if the issue of LBO is resolved by the Commercial Code, breach, preemptive discipline of criminal law need to be gone. Therefore, we will maintain the company's capital and the public interest aspects of corporate activities to harmonize regulatory provisions of Commercial Code of the credit facility must be subsumed legislatively.