삼성의 재벌승계 논죄: 에버랜드와 SDS 사건의 배임 유죄 판결 및 법리 논쟁 비평을 중심으로

Abstract

A bill nick-named “Lee Hak-su Law” is about to be proposed again to the newly composed National Assembly. It aims to make it easier to forfeit proceeds of enterprise crimes, especially those similar to chaebol Samsung’s illegal activities for the succession of its ownership to Lee Jae-yong and his sisters. This thesis seeks to explain the prerequisite, the illegality of the activities for succession (with the focus on the occasions of selling BWs or CBs at extremely low prices to Lee and his sisters), by way of screening the cases of the courts and the Court and academic literature. The Court ruled the Samsung Everland case (2007도4949) to be legal for the only reason that the offering was made to the shareholders at first, even though they had conspired to abandon their subscription chances for Lee and his sisters. This is a misunderstanding of the crime of the breach of trust and the duty of the directors according to company laws (i.e. Commercial Law). Furthermore, the Court ruled the Samsung SDS case (2008도9436) to be illegal, for the offering had been originally made to the third parties (Lees), but decided a mere probation to the defendants Lee Gunhee and others. It can be praised as it acknowledged the existence of the company’s damage, independantly from the shareholder’s damage, but it is inconsistent with the viewpoint of the Everland case which decided that the offer ‘to the shareholders at first’ should not be a violation of the duty, in that it does not go against the shareholders’ wishes, irrespective of the company’s interest. The only outcome of the conviction at SDS case can lead to another task to forfeit the proceeds of that crime. Current laws are too strict to admit forfeiture of the criminal fruits owned by third parties. The bill of “Lee Hak-su Law” can correct this situation. It is equipped with changing the burden of proof of the third party’s bona fides or no-fault and deems gifts to be tainted.