경영판단원칙과 업무상 배임죄

The adoption of the business judgment rule is being discussed actively. Already in the area of Civil Law, the business judgment rule was introduced in Decision 97‐Ka Hab‐39907 on July 24, 1998 by the Seoul Central District Court. Also in the area of Criminal Law, Decision 2002‐Do‐4229 by the Supreme Court on June 22, 2002 was judged based on the business judgment rule but the justness of its adoption is still under controversy. In this situation, the present study examined the justness of the introduction of the business judgment rule from the viewpoint of encounter between legal rationality and managerial rationality. That is, this study proved that managerial rationality has already accommodated legal rationality as a risk factor of management and that legal rationality should receive managerial rationality. In addition, we compared precedent cases reflecting managerial rationality and those not reflecting it, and explained the systematic standing of the business judgment rule and criteria for admitting the rule where the business judgment rule was adopted. We also discussed in what situation and on what degree the business judgment rule should be admitted. That is, the types of boundary area for admitting the breach of trust in the conduct of business were divided into risk error type and procedural defect type, and the intensity of the introduction of the business judgment rule was suggested.