이탈리아의 LBO규제개혁과 법적 시사점 = Italian Regulatory Reform of LBO Transactions and Some Legal Implications

다국어 초록 (Multilingual Abstract)

Recently, Italian government has reformed the regulation on financial assistance by companies under the Civil Code. Following the enacted company law reform, Italy seems to have departed from an outright prohibition on merger leveraged buy-outs(MLBO) as an indirect form of financial assistance by introducing a new ad hoc article 2501-bis in its Civil Code in 2003, which de facto grants MLBOs a legitimate legal status in exchange for greater information disclosure on the resulting leverage and financial projections of the post-MLBO combined entity. Futhermore, Italy has implemented the 2006 revised EU second company law Directive relaxing restrictions on the financial assistance, and revised the former provision article 2358 of the civil code in 2008.
Such an Italian reform of its traditional legal regime could provide greater flexibility to leveraged buy-outs(LBO) transactions. According to the reform,Italian stock corporations(SpA) are permitted to provide loans or guarantees to third parties for the acquisition or subscription of such corporation's shares. And the third party as an acquiring company provided with the financial assistance from the target is free to merge with the target without regard to its illegality, provided that certain conditions are satisfied and special procedure is followed.
Meanwhile, we have an apparently italian-like provision article 542-9under the Korea Commercial Code. Any financial assistance like providing loans or guarantees to third parties by listed companies for the acquisition of such company's shares is prohibited in principle, but exceptionally permitted in cases where the financial assistance has the company's business purposes and has no possibility to do harm to the business integrity. But the legal framework is significantly different from Italian one and has some legal problems to be considered for keeping the traditional principle of capital maintenance, which is ignored or not required in the US corporate law regime in protecting the company's creditors. Especially, some reasonable tests for keeping fairness for LBO transactions, which are not required under the current commercial code, should be necessarily provided both in substance and procedure.
This paper introduces the newly reformed Italian legal regime in detail and compares the two legal frameworks, based on the legal philosophy and legislative policy. Believingly, the Italian reforms on the leveraged buy-outs cast some useful legislative implications to Korean commercial Code in that two countries have similarities both in legal regime and regulatory philosophy in relation to financial assistance for the LBO transactions.
In conclusion, this paper suggests that current regulatory environment under the Korean commercial code should be reformed modelled after the Italian reforms, especially for developing LBO market better for the future and protecting the stakeholders including creditors from company's abusive financial assistance for the acquirers. The traditional corporate dogmatic principles controlling the current legal structure of Korea corporate law need to be reasonably moderated in harmonization with the economic rationale surrounding the LBO transactions rapidly emerging in the world M&A market.

참고문헌 (Reference)

1 김병연, "차입매수(LBO)와 배임죄의 적용-신한LBO 및 한일합섬LBO 사례와 관련하여-" 한국상사법학회 29 (29): 217-252, 2010

2 송종준, "주식회사 법정자본제도의 국제적 개혁동향과 입법 과제 － 주주와 채권자의 이해조정을 중심으로 －" 한국경영법률학회 20 (20): 171-204, 2009

3 송종준, "會社法상 LBO의 背任罪 成否와 立法課題* －신한 및 한일합섬 LBO 판결을 계기로 하여－" 한국증권법학회 10 (10): 319-363, 2009

4 Michele Giannino, "The Regulation of LBOs under English and Italian Company Law"

5 Marco Silvestri, "The New Italian Law on Merger Leveraged Buy-outs : A Law and Economics Perspective" 6-, 2005

6 Luc Renneboog, "Public-to-Private Transactions : LBOs, MBOs and IBOs" ECGI 2005

7 Ellis Ferran, "Principles of Corporate Finance Law, Oxford, 2008, Regulation of Private Equity-Backed Leveraged Buyout Activity in Europe" ECGI 2008

8 Francesco Portolano & Manuela Cavallo, "New Rules on Italian Leveraged Buy-outs"

9 Shearman & Sterling, "LLP" The Reform of Financial Assistance in Italy

10 Baker & McKenzie, "Italy enacts New Regulation on Financial Assistance"

11 Bruno Cova, "Italy : company law : leveraged buy-outs" 4 (4): C46-C49, 1993

12 Douglas Cumming & Simona Zambelli, "Illegal Buyouts"

13 Charles Proctor, "Financial Assistance : New Proposals and New Perspectives?" 28 (28): 2007

14 Adriaan Dorresteijn, "European Corporate Law(2nd ed.)" Wolters Kluwer 2009

15 Eddy Wymeersch, "European Company Law : The “Simpler Legislation for the Internal Market"(SLIM) Initiative of the EU Commission" University of Ghent Financial Law Institute

16 Alessandro Giuliani, "Directive 2006/68/CE and LBO transactions in Italy, Euro. Law"

17 Commission of the European Communities, "Communication from the Commission on a simplified business environment for companies in the areas of company law, accounting and auditing, Brussels, Aug.7"