업무상 배임죄에 있어서 경영상 판단 존중

Abstract

Within the context of liability for losses and the punishment of parties involved as a result of breach of trust in a company, breach of trust in South Korea appear to offer little respite and security to the individuals involved. According to current interpretations of the law, individuals presumed to be responsible for significant losses are largely considered guilty and are thus, punished according to criminal and commercial law. In recent times, however, the adoption of a business judgment rule as criteria for determining liability has been debated. While some parties propose that the business judgment rule has no place in Korea’s criminal justice system it is was developed according to USA’s commercial law system, others argue for its implementation and strict enforcement. It is the view of this paper, that what is of key importance are the principles and approach to the liability of individual business people and criminal liability as suggested by the business judgment rule. According to South Korean law, the crime of breach of trust is punishable under either criminal or commercial law; with criminal law intended to preside over personal offences and commercial law to preside over breach of trust in a corporate context. In reality, however, both corporate and personal offences are processed under criminal law. This is largely due to the implementation of the Act on the aggravated punishment, etc of specific economic crimes, whereby cases involving property valued over 500,000,000 won qualify for aggravated punishment of serious property crime, and are thus liable to punish offenders for up to lifetime imprisonment. This paper proposes that the ever-increasing number of corporate cases meeting the conditions of this article, emphasize the misapplication of criminal law here, in cases that should fall under the jurisdiction of commercial law. (lex specialis derogat legi generali) As such, it is recommended that an article, similar in nature to the special law(special breach of trust), be applicable under commercial law. Following the creation of such an article, both criminal law and commercial law might be more appropriately applied in the contexts that they intended for.