신한·온세통신·한일합섬 LBO 판결에 대한 분석 및 비판

This article applied the analysis frameworks designed by the author for the fiduciary duty in LBO transaction to major LBO cases such as Shinhan, Onse Telecom, and Hanil Synthetic Fiber. The analytical framework depends on whether it is based on corporate profit independence theory (corporate profit – account standard) or shareholder's proportionate interest standard. The corporate profit – account standard is excessively prohibitive for the collateral-type LBO, while for the merger type LBO, too vulnerable to infringement of the proportionate interests of the shareholders due to the lack of self-dealing perspective. The case of Hanil Synthetic Textile has clearly shown this problem. There seemed to be no evidence that the board of directors has considered or judged the possibility of significant damage suffered by 4,300 minority shareholders. In the case of Onse Telecom, the conclusion of the ruling is reasonable, but it revealed the lack of consistency of the corporate profit-account standards. In the case of Shinhan, the conclusion is acceptable, but the reasoning is diagrammatic and is not suitable to generalize. The essence of the LBO problem where the shareholders’ interests are vulnerable to infringement by the controling shareholder does not lie in the specificity of the LBO, but in the defect of the general legal jurisprudence of Korean Corporate Law. Accordingly, the main key to resolving the problem needs to be found from the general principles of corporate law rather than the special law or treatment for LBO. It means the need to change from corporate profit – account standard to shareholder profit inclusion standard.