상법상 특별배임죄규정의 개정방향

Abstract

A series of provisons on Breach of Trust as a crime are provided in the Korean Criminal Code, the Korean Commercial Code and in a Special Act. First of all, the Article 355 (Embezzlement and Breach of Trust)of the Korean Criminal Code provides “Breach of Trust”. A person who, administering another's business,obtains pecuniary advantage or causes a third person to do so from another in violation of ones duty, thereby causing loss to such person, shall be punished by imprisonment for not more than five years or by a fine not exceeding fifteen million won. The Article 356 (Occupational Embezzlement, Occupational Breach of Trust) of the Korean Criminal Code also provides “Occupational Breach of Trust”. A person who commits the crime as prescribed in Article 355 in violation of the duties of ones occupation, shall be punished by imprisonment for not more than ten years or by a fine not exceeding thirty million won. In addition, similar clauses exist in the Korean Commercial Code as “Special Breach of Trust” applicable to managers of corporations (Article 622: Crimes of Special Misappropriation by Promoters, Directors, and Other Officers,etc.) and in “the Act on the Aggravated Punishment, etc. of Specific Crimes” (Article 3). The original form of Breach of Trust in the Criminal Code was introduced from the German Criminal Code § 266 via Japanes Criminal Code Article 247. These series of Breach of Trust press strongly managers such as directors of corporations in the Korean business community. Many substantial owner of large enterprises or conglomerates were arrested or punished on a charge of commitment of Breach of Trust. This writer suggests that Korea shall adopt the business judgment rule in the Commercial Code. The business judgment rule in the United States specifies that the court will not review the business decisions of directors who performed their duties in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances and in a manner the directors reasonably believe to be in the best interests of the corporation. These situation arises when directors make a venture in their business although they can not ensure success. Along with adoption of the business judgment rule, the directors shall be exempted from both civil and criminal responsibility. This goal could be achieved by adding a proviso at Article 622 of the Commercial Code that the directors shall be exempted from the punishment of Breach of Trust when they acted on the base of the business judgment rule.