주식회사 이사의 배임행위와 형사책임- 회사법의 관점에서 -

Abstract

The director of a corporation as a member of a board of directors is authorized to participate in the board's decision making process on the operation of the company, and to supervise other directors' conduct. Especially in a corporation which does not have corporate officers, the representative director appointed among directors is a legal body in charge of the execution of the business operation. Under the modern corporate system which separates ownership and management, directors play essential roles since the authority to operate a corporation is concentrated on the director and the board of directors. In this modern corporate governance, the duties and the responsibilities of directors are highly emphasized, and the system to secure check and control over the directors' execution of their duties is very important. Furthermore in current situation where corporations take huge part in Korean economy, the issues regarding the responsibility of directors have great importance in controlling the management of corporations which play central roles in Korean economy. However the discussions on the responsibility of directors have been focused mainly on the civil liabilities. On this matter, the Commercial Act provides that if a director has intentionally or negligently acted in violation of any statute or of the articles of incorporation or has neglected his/her duties, he/she shall be jointly and severally liable for damage against the company. But given that the corporations take substantial part is national economy and the misuse or abuse of the corporate system could incur huge damages to the wide range of the interested parties, significantly unlawful acts, especially the occupational breach of trust, occurred in the course of directors' performance of their duties, should be criminally punished besides being assumed civil liabilities. The director could constitute a person administering another's business to conduct crimes of the breach of trust provided in the Criminal Act since he is a mandatory to execute the company's affairs entrusted by the statute of the articles of incorporation. And the director commissioned to undertake certain types of matters or specified matters related to the business affairs of a company has taken, or made a third party take, any pecuniary benefit by acting in breach of his/her duty and has thereby incurred damage on the company, he/she could be punished by the Commercial Act. Thus both the crime of the breach of trust provided in the Criminal Act and the special crime of the breach of trust by directors provided in the Commercial Act could apply to the directors' breach of occupational duty, and the Commercial Act should preempt the Criminal Act. However, since both the breach of trust of the Criminal Act and Commercial Act are penalty provisions, their interpretation and the application are governed by distinctive principles of criminal law. Nevertheless in the light of “the integrity of laws”, the conflict between the legal norms should be minimized. Therefore this paper aims to analyze and reconstitute the requirements of the crime of the breach of trust in Criminal Act and Commercial Act with focuses on the wrongdoer and the conduct in the breach of trust from the perspective of the corporate law.