회사 경영자의 상법상 특별배임행위에 대한 현행법 적용의 문제점과 처벌정책을 둘러싼 입법논쟁

The problems of application of current acts and legislative dispute about the punishment for special breach trust against managers of corporation under the Korean Commercial Code

The article 622 of the Korean Commercial Code provides "special breach of trust" applicable to managers of corporation. There are similar clauses in the Korean Criminal Code as "breach of trust" in the article 355, "occupational breach of trust" in the article 356. Furthermore, Korea has a special criminal act called "The Act of Aggravated Punishment for Specific Economic Crimes" that heavily punishes for big scaled property crimes such as breach of trust over 500,000,000 Won. Special criminal acts about aggravated punishments came from the concept that the strongest punishment is the most efficient way to prevent crimes. But it brought serious side effects, which are unnecessarily strong punishments on property crimes against managers of corporation. An opinion that the business judgement rule should be adopted in the Commercial Code is suggested to keep out those side effects. Along with it, a provision that the directors should be exempted from the punishment when they acted on the base of business judgement should be added to Article 622 of the Commercial Code. The business judgment rule is a United States case law-derived concept in corporations law. Given that the directors can not ensure corporate success, the business judgment rule specifies that the court will not review the business decisions of directors who performed their duties (1) in good faith; (2) with the care that an ordinarily prudent person in a like position would exercise under similar circumstances; and (3) in a manner the directors reasonably believe to be in the best interests of the corporation. The business judgment rule is very difficult to overcome and courts will not interfere with directors unless it is clear that they are guilty of fraud or misappropriation of the corporate funds, etc. It exists so that a Board will not suffer legal action simply from a bad decision. This study will discuss about the problems of application of current acts and legislative disputes on the punishment for special breach trust against directors of corporations under the Korean Commercial Code.