1인 주식회사의 횡령죄에 관한 연구

Abstract

Originally, the Supreme Court ruled and maintained the judgement that for a One-Person Corporation, the damages of the corporation were considered to be the damages of one of its shareholders, and the shareholders had no intention of harming the company, so that it was not possible to establish a criminal offense against the company. It can be considered that the profits of the company and the interests of the shareholders were judged to be the same in One-Person Corporation. However, this trend was changed in the 1982 conviction of embezzlement (80do537), and the change was once again made in the 1983 En Banc Judgment (83do2330) to clearly express once again that  for so-called One-Person Corporation whose stocks actually belonged to one shareholder, the subject of the act and the person himself are separate personalities, and when the property damage occurs to the corporation which is himself, the betrayal becomes a complete crime so even if the loss ultimately becomes the damage of the shareholder, it said that he cannot be exempted from the established crimes. Since the corporation has a distinct personality, the court takes a position that the damages of the company are different from the damages of the total shareholders. In this paper, we deal with the legal issues of betrayal and embezzlement in the event of a company's property leaking from One-Person Corporation in the position of a single shareholder (or employee) and a business executive (or director). In particular, in the case of disposing of dividend profits to be attributed to the shareholders themselves through a resolution of the general shareholders' meeting in a single-shareholder corporation consisting of one-person shareholder or actual one-person shareholder, it is exploring the issue of whether a single shareholder can be the subject of embezzlement and whether the director of the general shareholders' meeting can become a party or accomplice to the act of embezzlement or betrayal. In addition, although the interests of the shareholders and the interests of the company are independent, some argue for the theory of corporate profit independence in relation to the judgment of En Banc that presented the reason for the crime of betrayal. However, as the German case law and academic and legislative processes are advanced, it raises questions about the Supreme Court's attitude, which directly linked the theory of corporate profit independence to crimes of betrayal and embezzlement.