배임죄의 본질과 주체에 관한 고찰 - 상법상의 특별배임죄와 관련하여 -

Abstract

The present Criminal Act art. 355 ② prescribed that 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 penal servitude for not more than five years or by a fine not exceeding fifteen million Won. And Criminal Act art. 356 prescribed about occupational breach of trust and Commercial Act art. 622 - 624, distinguished from Criminal Act, prescribed about the special breach crime of trust that is committed by a initiator or executive of company etc. we interpretate the special breach crime of trust of Commercial Act is a special regulation of the breach crime of trust of Criminal Act. But, because of vagueness of this provision, it is caused many dispute about essence and subject of the beach crime of trust. They are very important problems because they decide the limit of application of the beach crime of trust. So, I will critically study on such problems about the beach of trust in the criminal law compared with the special breach crime of trust. I will examine about the essence of the beach crime of trust in view of the betrayal theory that is a position of conventional wisdom and our judicial precedents. And conventional wisdom and our judicial precedents identified “affairs of himself for the others” with “affairs of others for the others” in the interpretation of “a person who administers another's business". I agree on these opinions, and I will develop my theory on a such opinions in this paper. This paper is made preparation in advance for the study on the scope and limits of the criminal responsibility about the business judgement of corporator directors.