배임죄에 있어 경영판단 원칙의 도입여부에 대한 검토

Abstract

Breach of trust in the course of transaction is treated as the issue for civil procedures in principle. However, Korean Criminal Act Article 355 paragraph 2 established the breach of trust provision, which penalizes the act of breach of trust. The breach of trust has been exposed to long-lasting criticism of infringement on private autonomy and civilization of criminal issue. And further to such criticism, the business judgment rule has been discussed for a long time as the limitation logic on breach of trust. As the recent economic democratization basis by the Government has different directing point from such discussion from the start, it is necessary to check again whether to introduce relevant principle. The business judgment rule, having developed in accordance with the Anglo-American case laws, became the issue of debate as German Stock Law adopted and Korean judicial cases use the expression of 'business judgment rule'. In relation to the analysis in Korean judicial cases, this thesis reviews by separating civil cases and criminal cases. Firstly in case of civil and commercial cases, this thesis clarifies that Korea is different from the Anglo-America in that there were no discussion on allocation of burden of proof, and the contents of business judgment shall be screened. Meanwhile in case of criminal cases, this thesis proved the interpretation that the Court demands dolus determinatus is different from truth by analysis on a number of judicial cases. Furthermore, this thesis criticizes the proponents of adopting business judgment rule in the sequence of the theory of criminal system. Firstly, this thesis denies the argument for adopting the rule as the factor to disclaim the intention for breach of trust, based on the burden of proof in Criminal Act as well as the consideration on fundamental of business judgment rule. And to the argument for adopting the rule as the principal of the law for acceptable risk, this thesis points out that the principal of the law for acceptable risk as the principle for limiting negligence criminal is not proper as the logic for limiting establishment of breach of trust. Meanwhile to the argument that recognizes circumstances precluding wrongfulness pursuant to the consents by the victim, this thesis verified that such recognition is not suitable to illegality system and Korean corporate structure. Lastly, to the argument for adopting business judgment rule by revising 'special breach of trust' at Commercial Code Article 622, this thesis criticizes the blurredness and limited effect of such legislation draft. In this study, concerns are raised on the bad effects on the deterioration in confidence by the convicted to the criminal judicature, on the loss to the national economy due to moral hazards of the management group, and on the overall corporate crimes caused by introduction of business judgment rule. The threats to corporate to be borne in the course of managerial activities are one thing, and the evaluation of the results realized from the threats by Criminal Act shall be another. In consideration of the policy ground and the eagerness of the general society on economic democratization, the discussion on adopting the business judgment rule into whether breach of trust is established or not, shall be proceeded in further prudence.