경영판단행위와 형법상 배임죄 (Director’s Judgement Act in Business and Breach of Trust in Criminal Law)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 26권 / 1호 / 27 ~ 49페이지
· 저자명 : 박수희

초록

In contrast with argument that demanding for admission of criminal responsibility against director’s judgements in business, in these days there are argument that objecting to director’s punishment by breach crime of trust, because the excessive intervenes of criminal law in ares of the coporate management restrains the creative challenge of directors.
With regard to director’s liability for business judgement, the argument for adopting the business judgement rule as limitation logic into whether breach of trust is established or not, has been discussed for along time.
The business judgement rule, having developed in accordance with the USA case law, state that the director shall not be held liable for any action or failure to take action for duties he performed in his office. So to speak, 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.
In connection with introducing this rule in the area of criminal law of malfeasance, there are arguments for adopting this rule, on the contrary, argumenmt againstg doing. Also among the former argument, there are many opinions in respect of introducing this rule as what factor in requsite for establishment of crime breach of trust. These are the argument for adopting the rule as the factor to disclaim the intention for the breach of trust, and the argument for adoption the rule as the material for deciding whether director violates the duties or not, and the argument for adoption this rule the principal of the law for acceptable risk, and the argument for adopting business judgement rule by revising ‘special breach of trust’ at Commercial Code Article 622.
Present, many professors insist that it is not necessary to introduce the business judgement rule as the handy analysis tool for judging criminal charge of director. And I think so. The problems about the criminal responsibility against director’s acts in business could be settled through interpreting restrictively the establishment requisites of the breach crime of trust of criminal Act.
Consequently the directors’s sincere and fair business judgement is not applicable to trust breaching. But if directors violate this duties in business judgement, they should be punished by breach crime of trust. In this conclusion, it is same as case of applying the business judgement rule. In connection with the dabate whether director’s business judgement constitute a crime of ocupational breach of trust, it is desirable to solve this problem by revising ‘special breach of trust at Commercial Code Article 622 in way of defining vagueness of this provision, so by applying not Criminal law but Commercial law to the responsibility against director’s business act.

영어초록

In contrast with argument that demanding for admission of criminal responsibility against director’s judgements in business, in these days there are argument that objecting to director’s punishment by breach crime of trust, because the excessive intervenes of criminal law in ares of the coporate management restrains the creative challenge of directors.
With regard to director’s liability for business judgement, the argument for adopting the business judgement rule as limitation logic into whether breach of trust is established or not, has been discussed for along time.
The business judgement rule, having developed in accordance with the USA case law, state that the director shall not be held liable for any action or failure to take action for duties he performed in his office. So to speak, 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.
In connection with introducing this rule in the area of criminal law of malfeasance, there are arguments for adopting this rule, on the contrary, argumenmt againstg doing. Also among the former argument, there are many opinions in respect of introducing this rule as what factor in requsite for establishment of crime breach of trust. These are the argument for adopting the rule as the factor to disclaim the intention for the breach of trust, and the argument for adoption the rule as the material for deciding whether director violates the duties or not, and the argument for adoption this rule the principal of the law for acceptable risk, and the argument for adopting business judgement rule by revising ‘special breach of trust’ at Commercial Code Article 622.
Present, many professors insist that it is not necessary to introduce the business judgement rule as the handy analysis tool for judging criminal charge of director. And I think so. The problems about the criminal responsibility against director’s acts in business could be settled through interpreting restrictively the establishment requisites of the breach crime of trust of criminal Act.
Consequently the directors’s sincere and fair business judgement is not applicable to trust breaching. But if directors violate this duties in business judgement, they should be punished by breach crime of trust. In this conclusion, it is same as case of applying the business judgement rule. In connection with the dabate whether director’s business judgement constitute a crime of ocupational breach of trust, it is desirable to solve this problem by revising ‘special breach of trust at Commercial Code Article 622 in way of defining vagueness of this provision, so by applying not Criminal law but Commercial law to the responsibility against director’s business act.

참고자료

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