전환사채를 이용한 변칙상속에 대한 형사법적 고찰 - 삼성 에버랜드 사건을 중심으로 -

Abstract

Generally, there are three types of economic crime: window dressing settlement, unfair convertible bond, and unfair intercompany transaction. Between these three, this paper focuses on criminality of issuing the convertible bond using the Samsung Corporation case as a research subject. The reason for doing this is because along with those economic criminals, even the machinery of law or jurists often say they should not be punishableand this does not seem to be fair at all. The research concluded that the act of issuing low price convertible bonds in order to dodge tax payment as of in Everland case, is definitely punishable by law. If the director of Everland is the one processing the business with others, it can be said that he and the corporation are relied on each other. In other words, he has committed a malfeasance in office applied by the penal code 355-2. Issuing the convertible bonds to one person with the price less than 10% of its original price is against the director’s duty to maximize the corporation’s profit by working hard and sincerely. If there were any convincing reason for selling at very low price, it would have had been said a reasonable management but none were found. By this duty violation, the director has profited the third person, Jae-Yong Lee, around 10 billion won and damaged the company around 100 billion won. The director committed this act intentionally and thereby his criminality is approved based on the penal code 355-2. Furthermore, because their main work is to deal with other’s business, he falls under the businessman of the penal code 356 which weighs his penalty more. Also the fact that they have profited the third person satisfies 3-3-1 of the Additional Punishment Law on Specific Crimes which again adds his penalty. The reason of justification and excuse were also investigated but none could be applied to this case. Also the statement saying fraud occurreddue to false management judgment should not be punishable is hard to accept. Samsung Corporation’s expedient to success the right of management is definitely a crime and should be punished.