차입매수(LBO)에 대한 배임죄 처벌의 타당성 -대선주조사안(부산고등법원 2010.12.29. 선고 2010노669판결)을 중심으로-

LBO(Leveraged Buyout) is a type of M&A. This investment scheme has intrinsic risk of increasing the debt ratio. Also, minor shareholders’ and creditors' profit can be infringed in process of LBO. I basically agree to the necessity to regulate LBOs to minimize those kinds of side effects, but the problem is that we, in Korea, regulate LBOs by criminal law. The director can violate criminal law on account of breach of trust. 'The principle of subsidiarity in criminal law should be observed and the criminal punishment should be restricted to a minimum. This thesis deal with the criminal Daesunjujo case. The Court of appeal denied a breach of trust crime in this case. The Court of appeal ruling showed that the director could be guilty of breach of trust when the capital reduction is void for the procedural fault. But breach of trust should be judged by criminal standard. There are some civil legislations that can regulate LBOs in Korea. But they cannot be applied and developed if criminal procedure is preferred. Therefore the criminal punishment should be restricted to a minimum, and referring to business judgement rule can be helpful to this.