기업의 비자금조성행위에 대한 형사처벌 가능성 검토

Abstract

Only when there is an actual offender's illegal taking intent in raising a slush fund, this case assesses at a crime. And it decides guilty on using a slush fund at discretion after raising a slush fund. But the arbitrary user of a slush fund couldn't be estimated at one who keeps other people's property from two aspects. First of all, it couldn't be assured that the arbitrary user is the keeper of a slush fund by breaching of compulsory legislation, because of the possibility of illegal source entrust. Furthermore, because raising a slush fund of the company which might bankrupt is self destruction, this is only unacceptable hypothesis. Therefore the two cases that raises a slush fund are not the works of the company but those of the accused against the intention of company. This must be estimated at the action breaching legal interest. If the raising a slush fund itself can be estimated at embezzlement related with the duty, the action that disturbs finding or pursuing a slush fund raised must be punished as crime of criminal gains' disguise or concealment.