상법 제622조 임원 등의 특별배임죄에 관한 연구

Abstract

This study asserts that a series of penalty provisions relating to corporations in the Korean Commercial Code, including Article 622, should be amended in order to adequately reflect domestic circumstances of Korean business and economy. The Special Breach of Trust in the Commercial Code that aims to regulate the charges of corporate managers' breach of trust in corporate management is different from the Breach of Duty in the Criminal Code in terms of substantial meaning, the nature of illegality, and standards of judgement for the violation of duty. In this respect, this study argues that a legislative approach is necessary to add a new rule that Article 622 of the Commercial Code should be applied to the violation of managers' duty in corporations, prior to the provisions of the criminal code. Also, more strong punishments on the violation of managers' duty in corporations are needed than the statutory punishment of the criminal code. This is because managerial breach of trust has more harmful influence on corporations and national economy. This study suggests that the principle of rational business judgement should be added to Provision 3 of Article 382 : Duty Fulfillment Rule of Board Members. As a way to do this, existing Provision 3 of Article 382 : Duty Fulfillment Rule can be replaced with the new subtitle of Duty Fulfillment and Business Judgement of Board Members with the content that "Board members should make a rational business judgement on the basis of sufficient information for the profit of the corporation." If the business judgement rule were included in the Commercial Code, board members who make rational business judgement for the profit of the corporation would not be charged with the breach of trust because their acts don't constitute Article 622 of the Commercial Code.