경영판단의 원칙과 배임죄 성립여부에 대한 연구 (The relationship between The Business Judgement Rule and the Malfeasance)

서지정보

· 발행기관 : 한국비교형사법학회
· 수록지 정보 : 비교형사법연구 / 15권 / 2호 / 261 ~ 282페이지
· 저자명 : 오경식

초록

The business judgement rule states that the director shall not be held liable for any actions or failiure to take action for duties he performed in his office. In Korea the business judgement rule is generally used to remove not only director's civil liability, but also criminal liability such as misfeasance. The latter is misused frequently in our courts. It is questionable whether the business judgement rule should also be the standard of pressing misfeasance charges. With the premised civil legal regulations getting more complex the types of mismanagement are expanding, thus there is a rising necessity for limiting the concept of misfeasance in business judgement rule.
The business judgement rule states that if a director manages in ways he believes to be in the best interest of corporation, as long as this does not involve fraud or other illegal conduct, abuse of discretion, and waste of corporate assets, the management's position is vindicated. Thus when a director completes a duty of care within the standard of conduct, the business judgement rule can be extensively applied as a standard for review. Since the business judgement rule is not yet stated in statute but is established by precedent in the United States, applying it to Korean law should be done by construction.
Since the presumed effect of the business judgement rule is closely connected to the in dubio pro reo rule, which bears the burden of proof on the prosecutor, the business judgement rule can be more useful in the field of criminal law than civil law. When the business judgement rule is extensively acknowledged as a limitation for pressing charges of misfeasance, however, the business judgement rule acts as a judicial restraint, thus protecting the defendant more strongly than in other cases of misfeasance. Therefore criterions for applying the business judgement rule to cases of misfeasance are required.
The contents of the business judgement rule as a limitation in pressing charges of misfeasance can be divided into standards regarding the conditions of the business judgement rule and other related standards. The former standards are the following: breachment of loyalty, duty of care, the circumstances and motives of the business judgement, the contents of business in subject, the economical situation of the corporation, the probability of loss and profit, abuse of discretion, waste of corporate assets, and fraud·illegality·ultra vires conduct(i.e. not being a breach of statutes and public policy, not being a breach of the articles of corporation and statutes). The latter standards are the following: closed status of held corporation, overreaching behaviors, conspiracy, and observation of the policies and directions of confidential experts and government offices and consideration of the director's position. The standards above should act as a handy analysis tool for judging misfeasance according to the business judgement rule.
But the introduction of the business judgement rule, which has been developed as the principle to restrict the liability with fault in America, as a reason for restricting the intentional malfeasance in office targeting on deliberate offense isntead negligence contains many problems. Furthermore, the opinion that adventurous trade does not form malfeasance in office when it is carried out to seek out profit without deviating from the range of execution of common tasks has already been settled in the academia of criminal law that it does not come under the violation of duties. This reduces the necessity of introducing the business judgement rule to criminal law. Seconly, the introduction of the business judgement rule, which has been developed in the special legal and economic situation of America where ownership and administration of company are separate, to Korea, which is still centered on owner-manager, may just be an indiscreet naturalization of foreign plants in ecosystem which does not have any appropriate control system. In particular, it is dubious to accept an incompleted legal principles with indefinite standards that have not yet been stipulated even in America, and is not consistent between academia and court of justice. Thirdly, social role and importance of companies have increased as society professionalized and integrated, but it is still easy to find cases where a company is treated as a possession of one individual, and the awareness of the company's social responsibility is at an insufficient level. So if the business judgement rule is introduced to give indulgence to managers, it will lead to unreasonable results that acknowledge the management as a special social class. Therefore, we must sublate the attitude of unconditionally introducing the business judgement rule to criminal law without serious consideration of our legal situation, and it is desirable to solve the problem of understanding the risk according to the administration of the management with restrictive interpretation theory of the malfeasance in office.

영어초록

The business judgement rule states that the director shall not be held liable for any actions or failiure to take action for duties he performed in his office. In Korea the business judgement rule is generally used to remove not only director's civil liability, but also criminal liability such as misfeasance. The latter is misused frequently in our courts. It is questionable whether the business judgement rule should also be the standard of pressing misfeasance charges. With the premised civil legal regulations getting more complex the types of mismanagement are expanding, thus there is a rising necessity for limiting the concept of misfeasance in business judgement rule.
The business judgement rule states that if a director manages in ways he believes to be in the best interest of corporation, as long as this does not involve fraud or other illegal conduct, abuse of discretion, and waste of corporate assets, the management's position is vindicated. Thus when a director completes a duty of care within the standard of conduct, the business judgement rule can be extensively applied as a standard for review. Since the business judgement rule is not yet stated in statute but is established by precedent in the United States, applying it to Korean law should be done by construction.
Since the presumed effect of the business judgement rule is closely connected to the in dubio pro reo rule, which bears the burden of proof on the prosecutor, the business judgement rule can be more useful in the field of criminal law than civil law. When the business judgement rule is extensively acknowledged as a limitation for pressing charges of misfeasance, however, the business judgement rule acts as a judicial restraint, thus protecting the defendant more strongly than in other cases of misfeasance. Therefore criterions for applying the business judgement rule to cases of misfeasance are required.
The contents of the business judgement rule as a limitation in pressing charges of misfeasance can be divided into standards regarding the conditions of the business judgement rule and other related standards. The former standards are the following: breachment of loyalty, duty of care, the circumstances and motives of the business judgement, the contents of business in subject, the economical situation of the corporation, the probability of loss and profit, abuse of discretion, waste of corporate assets, and fraud·illegality·ultra vires conduct(i.e. not being a breach of statutes and public policy, not being a breach of the articles of corporation and statutes). The latter standards are the following: closed status of held corporation, overreaching behaviors, conspiracy, and observation of the policies and directions of confidential experts and government offices and consideration of the director's position. The standards above should act as a handy analysis tool for judging misfeasance according to the business judgement rule.
But the introduction of the business judgement rule, which has been developed as the principle to restrict the liability with fault in America, as a reason for restricting the intentional malfeasance in office targeting on deliberate offense isntead negligence contains many problems. Furthermore, the opinion that adventurous trade does not form malfeasance in office when it is carried out to seek out profit without deviating from the range of execution of common tasks has already been settled in the academia of criminal law that it does not come under the violation of duties. This reduces the necessity of introducing the business judgement rule to criminal law. Seconly, the introduction of the business judgement rule, which has been developed in the special legal and economic situation of America where ownership and administration of company are separate, to Korea, which is still centered on owner-manager, may just be an indiscreet naturalization of foreign plants in ecosystem which does not have any appropriate control system. In particular, it is dubious to accept an incompleted legal principles with indefinite standards that have not yet been stipulated even in America, and is not consistent between academia and court of justice. Thirdly, social role and importance of companies have increased as society professionalized and integrated, but it is still easy to find cases where a company is treated as a possession of one individual, and the awareness of the company's social responsibility is at an insufficient level. So if the business judgement rule is introduced to give indulgence to managers, it will lead to unreasonable results that acknowledge the management as a special social class. Therefore, we must sublate the attitude of unconditionally introducing the business judgement rule to criminal law without serious consideration of our legal situation, and it is desirable to solve the problem of understanding the risk according to the administration of the management with restrictive interpretation theory of the malfeasance in office.

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