사모펀드(PEF)의 차입매수(LBO) 거래와 관련한 이해상충의 법적규율

This article examines the structural conflicts of interest inherent in Private Equity Fund (PEF) leveraged buyout (LBO) transactions, focusing on the legal frameworks governing such conflicts in the United States and South Korea. PEFs have become prominent players in corporate acquisitions, often exercising substantial control through LBOs and subsequently participating directly or indirectly in portfolio company management. This dynamic inevitably produces complex conflicts of interest—particularly when fund managers or their affiliates concurrently serve as directors on multiple portfolio company boards, or when affiliated portfolio companies transact with one another. Through an in-depth analysis of representative cases, including the recent Homeplus ABSTB crisis in Korea and the Hellas Communications case in Europe, this article highlights how excessive leverage and short-term profit orientation can result in significant adverse outcomes for creditors and minority stakeholders. The study explores judicial responses, focusing on the stringent “entire fairness” doctrine and disclosure obligations developed under Delaware corporate law in the U.S., compared to the relatively fragmented and less robust regulatory regime currently prevailing in Korea. Based on this comparative review, the article argues for substantial reforms in Korean law and practice, advocating for enhanced conflict management mechanisms, including stricter director fiduciary duty standards, mandatory conflict review procedures, and greater transparency in related-party transactions and the decision-making processes of portfolio companies. These improvements are posited as crucial for protecting the interests of a broader range of stakeholders and ensuring more sustainable and responsible private equity investment practices in Korea.