배임죄와 주주총회 결의의 한계 ― 주주의 이익만 문제되는 영역의 검토

Abstract

If the representative director or the directors of a company dispose the property of the company according to the resolution of the general meeting of the company, and the resolution is legitimate, it is natural the disposal could not be said to be breach of trust. But when the resolution is out of the limit, it could be illegitimate, and the directors who execute the resolution could take the criminal liability of the breach of trust. In relation to the issue of the limit of the resolution, the Court presents as considerations, the interest of the shareholders and the creditor. As for the interest of the creditor, the Court says that the disposal could be breach of trust if the company could fall into the overdue debt or the situation in which the repayment of debt could be difficult. On the other hand, according to the criteria of the Court, the resolution in the limit, which has no problem to the interest of the shareholders and the creditors, could be said to be legitimate. When the transactions of the company are differentiated as capital transactions and profit-loss transactions, the capital transactions are only related to the interest of the shareholders, not to the interest of the creditors. Therefore, If the resolution of the general meeting of the shareholders, and especially one-man shareholder, are related only to the capital transactions, it could be easily understood as legitimate. In this article, the case of the issue of the convertible bond and the case of the disposal of the dividendable profit are examined as capital transaction, and it could be said to be necessary to research the area of the capital transactions additionally. It would clarify the criteria of the limit and make the criteria of the criminal liability more predictable in capital transactions.