상법 제382조의 3에 주주의 비례적 이익을 추가하는 상법 개정안의 의미와 개정안이 배임죄 해석론에 미치는 영향

Abstract

Directors owe a duty of loyalty to the company. The standard of judging whether there is a breach of the duty of loyalty will be determined by considering the nature of duty of loyalty, which is the prohibition of conflicts of interest and enjoyment of earning of the company. Unlike the duty of care, it is not exempted simply by business judgment rule. The duty of loyalty is a relative and subjective duty bourne in the relationship between the principal and the person obilgated to the loyalty. Recently, in capital transaction such as physical divisions, when the director’s actions have no effect on the company but only result in the transfer of wealth among shareholders, an amendment was proposed to add the proportional interests of shareholders to the scope of the director’s duty of loyalty in order to resolve the conflict of interest between controlling shareholders and general shareholders. However, intent of the amendment is not to impose a duty of loyalty but a duty of care on directors to decide not to infringe upon the proportional interests of shareholders in capital transactions. In that case, it is difficult to maintain the recent interpretation that emphasize the independent nature of director’s duty of loyalty by understanding Article 382-3 of the Commercial Act as a general provision of the duty of loyalty based on fiduciary relationship. There is also the problem that the meaning of the proportional interests of shareholders and criteria for judging breach of duty are unclear. Regarding the establishment of the crime of breach of trust of Article 355 of the Criminal Code, it is difficult to see that the crime of breach of trust against shareholders can be established independently of the company even if the law is revised. Since the capital transactions such as the issuance of the new stocks are intended to raise capital for the company, the work of directors is to act on behalf of the company’s property and thus constitutes the company’s business, and not to act on behalf of the property of shareholders who hold ownership of the company through stocks. The business “of” others are distinct from those “for” others, and when a director executes the company’s business as an organ of the company, it is to handle the company’s business, and even if the shareholders or the proportional interests of the shareholders are protected as a result, it is the business “for” the shareholders, not the business “of” the shareholders. The amendment is unclear as to the meaning of the “others” in the breach of trust. The principle of legality requires that the content of crimes and punishment be clearly defined, but if an obligation is imposed with unclear targets and content, the actor will not be able to anticipate and decide what acts the law intends to punish and what acts should be performed accordingly.