대표권 남용과 배임죄- 대법원 2012. 5. 24. 선고 2012도2142 판결 -
A Study on the Abuse of Power of Representation and the Constituting of the Crime of Malfeasance - Supreme Court Decisions 2012Do2142, May 24, 2012 -
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Unlike natural persons, juridical persons including a company have to act through natural persons who have the power to represent it. The representatives of a company should exercise their power for an interest of the company through the fiduciary duty based on a fiduciary relationship. The abuse of power of representation is a typical example of an act which is breach of the representatives' duty to the company. Conceptually, the abuse of power of representation has two elements: an act which is within the powers of representation but done with a view to personal gains of representative himself or some third party. The reason of the increasing phenomenon regarding this kind of corporate action were mainly based on the growth of the modern corporations in our economy. In recent years, one of the hotly debated issues which has been dealt by Korean Supreme Court is the validity of the contact by a representative act which abuses the power of representation. Additional issue with this is whether representative director who abused the power of representation can be charged with malfeasance in office in criminal perspectives. Recently, Korean Supreme Court rendered a not guilty decision relating to the case in which a representative of a company issued a note of payment against an interest of the company(Supreme Court Decisions 2012Do2142, May 24, 2012). This article attempts to offer a critical review on Supreme Court Decisions 2012Do2142.
Abstract
Unlike natural persons, juridical persons including a company have to act through natural persons who have the power to represent it. The representatives of a company should exercise their power for an interest of the company through the fiduciary duty based on a fiduciary relationship. The abuse of power of representation is a typical example of an act which is breach of the representatives' duty to the company. Conceptually, the abuse of power of representation has two elements: an act which is within the powers of representation but done with a view to personal gains of representative himself or some third party. The reason of the increasing phenomenon regarding this kind of corporate action were mainly based on the growth of the modern corporations in our economy. In recent years, one of the hotly debated issues which has been dealt by Korean Supreme Court is the validity of the contact by a representative act which abuses the power of representation. Additional issue with this is whether representative director who abused the power of representation can be charged with malfeasance in office in criminal perspectives. Recently, Korean Supreme Court rendered a not guilty decision relating to the case in which a representative of a company issued a note of payment against an interest of the company(Supreme Court Decisions 2012Do2142, May 24, 2012). This article attempts to offer a critical review on Supreme Court Decisions 2012Do2142.
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