1인 주식회사와 배임죄

Abstract

A corporation is a capital firm, unlike personal company or personengesellschaft, which does not require two or more personnel for being existence itself. One man company is the company of which all shares are owned by a sole shareholder. In case of operation of one man company, the sole shareholder would have all the shares of the company, and become a director managing the company. In recent SPP case, the issue was whether one man company supporting the affiliate subsidiary company could be charged with breach of trust or not. There could be a case where a sole shareholder actually owns several companies, and fund of one of the companies could be used for the repayment of debt of another company under the same management of the sole shareholder. In the past, the sole shareholder and the one man company were regarded as being separate independent personalities, thus, if the sole shareholder consumes the money of the one man company for his own sake, he could be charged with embezzlement, and breach of trust could also be issued as well if the company would suffer monetary damage(96도 1525 judgment). In the recent SPP case(2015도 12633) where one man company is providing monetary supporting to affiliate company, the judgment was as follows: Breach of trust shall not be triggered as it was done without the intention of damage according to business judgment rule, if following conditions are met. ① Affiliate companies shall pursue the common interest, practically combined together; ② Monetary supporting by one man company is pursuing the common interests of the affiliates; ③ Selecting the supported company and the size of supporting shall be objective and reasonable; ④ The supporting activity shall be done in the normal and legally allowable practice; ⑤ Appropriate reward could be expected objectively considering all the outside conditions. As seen above, in case of one man company’s operation, if the sole shareholders confirms or agrees, the intent of damage could be denied, and then the breach of trust shall be denied accordingly. The assessment of damage shall be done in the perspective of the one man company considering all the aspects of interests. If there were no damage, and no intension of damage, the breach of trust shall not be triggered. Besides, the representative director could be responsible to compensate the damage, if he does harm to the company by breaching the duty of the faithfulness or duty of care. Practically, there are many cases which were accused or indicted as breach of trust despite the criminal principle of subsidiarity. This is because it would help to gather evidences in a short time that could be used in the civil cases with the help of public investigation agency. On the other hand, as professional breach of trust would have been triggered by mere probability of damage, or without proving the causation and damages, there have been many civil cases as well as criminal cases raised. However, basically, profit or loss arisen from transactions between companies shall be managed in the area of civil responsibility. The principle of criminal complementation shall be abided by in any case.