미국법상의 LBO(Leveraged Buyout)에 대한 평가— 법정책적 논의를 중심으로 —

A leveraged buyout (LBO) is a technique employed in mergers and acquisitions (M&As), in which the M&A is funded through leverage or lending. Although the formal framework of individual LBOs can vary, an LBO generally relates to an M&A in which a considerable portion of the funds paid for the stock of a target corporation is raised through borrowing, and the loan is secured by the target corporation’s assets. Usually the acquirer invests little of its own cash. Further, an underlying hallmark of the LBO is that corporate capital is exchanged for debt, and the original shareholders are substituted for new secured creditors. U.S. fraudulent conveyance laws, such as the Bankruptcy Code and other state statutes, forming part of the Uniform Fraudulent Transfer Act (UFTA) or the Uniform Fraudulent Conveyance Act (UFCA), have been enacted to prevent a corporation becoming bankrupt after an LBO. However, leveraged buyouts in the U.S. corporate law have several problems. First, LBOs change a corporation’s assets to debts. Second, LBOs should not be regulated under the fraudulent conveyances laws; rather, they should be understood in terms of the relationship among the corporation, the shareholders, the board of directors, and the creditors. Third, a corporation’s assets are transferred to the shareholders. Fourth, LBOs create a situation in which profits are made by selling the corporation rather than by faithfully managing it. Fifth, the board of directors may be forced to assume responsibility, which encourages the board of directors to take aleatory decisions. Sixth, LBOs aggravate the financial state of a corporation. Finally, the existing shareholders do not always make a profit. LBOs in the U.S. serve to demonstrate the implications of this system if it is allowed in Korea. In the author’s opinion, LBOs are not a desirable system and thus must be prohibited.