온세통신 차입매수 판결에 관한 연구 - 대법원 2015. 3. 12. 선고 2012도9148 판결을 중심으로 -

In the matter of Onse Telecom, since the asset of the Onse Telecom, the target company, was provided as collateral, an issue arose with respect to consequent risk of damages incurred to Onse Telecom. The District Court ruled that the defendant had earned Ubistar, the acquiring company, a profit in assets that is equivalent in value to the collateral, while causing a risk of damages in assets to Onse Telecom; on the other hand, the High Court ruled that the defendant had not caused as much damages as the value of the collateral. The Supreme Court ruled that, although the rationale explained in the original verdict was unsatisfactory, it was reasonable to decide that the defendant was innocent. In this paper, we examine the Supreme Court ruling on the Shinhan case, a precedent on leveraged buyout, and review the Onse Telecom case. First, we examine whether the assets were provided as collateral with due consideration, and then investigate the conflict of interest caused by a premature exercise of bond with an attached warrant. In this case, the target company provided the assets as collateral and obtained a long-term loan in order to repay its debts. Since Onse Telecom, the target company, provided its office building as collateral in order to repay the bond with an attached warrant, and obtained a long-term loan of 84.3 billion Korean Won, the amount of the long-term loan, 84.3 billion Won, may be considered as compensation in exchange for providing the collateral. Since then, the target company used the gains from selling the office building to consolidate the long-term loan. As a result, it can be considered that by selling its office building the target company prematurely paid back the bond with an attached warrant. Since the target company has both the disadvantage of loss of property rights and the advantage of debt service, we cannot conclude that a damage had been incurred. The target company was compensated for providing the collateral, and the early repayment did not cause damages to the target company. Furthermore, the rights of the target company’s shareholders and creditors were not violated. Since there was no damages to the interested parties as well as the company, the defendant cannot be accused of malfeasance in office. In conclusion, the High Court ruling is valid, but it is necessary to make it clear that the target company received benefits in exchange for providing the collateral.