업무상배임죄에 있어서 경영판단의 원칙

Abstract

In these days, the business judgment rule is dealt importantly in the criminal law. The reason is that if the criminal law intervenes excessively in the area of the corporate management, the manager's judgment and creative challenge mind are ignored and restrained. So it is possible to criticize that the result of the excessive intervenes of the criminal law leads to the shrinking of the corporate activities and brings the damage to the national economy finally. There is a confrontation of opinions whether the business judgment rule can be adopted as the principle of the limitation of the intervention of the criminal law in the control of the corporate crime, especially as the criminal law principle that limits the application of the crime of trust breach in business. In principle, the corporate's management should be based on the management's autonomy and initiative. So the corporate manager's free business judgment must be respected. Especially, the adventurous transaction is often followed in management, so the corporate manager must not be called to account of the criminal law for the only reason of the management result even if the injury happened in the course of the management of the company. The reason is that this is violated to the principle of the responsibility of the criminal law. However, the business judgment is not located outside area in the law even if it is the high degree management. Especially, because other sanctions except the criminal law is not effective in actually on the regulation of the corporate crime, the need for the control of the criminal law is called when the seriousness of the social damage that the corporate crime produces is considered. Today, because the social status of the enterprise is huge, the enterprise's influence is stronger than ever before. So the enterprise activity is no more only a individual's problem. It produces the social and public responsibility. Therefore, it is not unreasonable that impose the corporate social responsibility on the company. The practice of the corporate social responsibility is taken for granted as the common social principle that the corporate should observe now. Therefore, it came to the circumstance that enterprises accept the corporate social responsibility in some degree as rightful thing. It is regrettable that the discussion on the corporate crime has not considered the effective control plan on the corporate crime through the debate that understands essential characters of enterprise and the deep concern of the damage by the corporate crime as yet. Preferably, it may be leaned on the part of the theory of the criminal law. However, it may be the reasonable control plan what needs really now to settle the problem of the corporate crime. The reason is that through the plan the effort to promote the social trust and to recover the national sense of common bonds can be enlarged. On today, the control circumstance about the corporate crime is not so enough. In the situation, it is not always appreciated to apply the business judgment rule so easily only for the reason of the called peculiar management area of enterprise. Because it is undesirable to except the malpractice of the corporate like the crime of trust breach in business that the management commits in the control of the criminal law only for the reason. Nevertheless I can not agree to exclude the application of the business judgment rule in the problem of the crime of trust breach in business unconditionally without the reasonable reason. Because the business operations such the enterprise's initiative and free economic activities within the frame of market economy principle must be secured in principle. The reason is that it can contribute to enterprise's preservation and strengthening and the development of national economy through this. For the reason, the enterprise's autonomy and initiative must be respected also in the analysis of the crime of trust breach in business. Therefore, it is right to acknowledge the introduction of the business judgment rule in the analysis of the crime of trust breach in business. But it is desirable to make the corporate social responsibility the standard of the analysis that compose contents as the principle of judgment of the business judgment rule. This will encourage the practice by elevating realization of the enterprise about the corporate social responsibility. Also it will contribute to the development of the healthy and desirable national economy.