전환사채의 저가발행과 관련한 이사의 배임죄 성립여부 — 대법원 2009.5.29.선고 2007도4949판결을 중심으로 —

With regard to director's criminal liability for breach of fiduciary duty in case of the issuance of convertible bond at reduced price, this thesis deals with three legal issues regarding No. 2007Do4949 sentenced by Supreme Court on 2009.5.29. Whether one of the requirements ("whether the corporation was damaged or not") necessary for acknowledging the director's criminal liability for breach for fiduciary duty was satisfied or not, shall be decided based upon not only a economic but also a legal point of view. In case of capital transaction, it should be reasonable to verdict whether the corporation was damaged or not, on the basis of property which should have increased, which is supported by Gentile vs. Rossette 906 A. 2d 91 (Del. 2006). Where a corporation would increase capital through issuance of shares, if a corporation shall lose an opportunity to invest due to unreasonable undervaluing of net worth a share, it should be reasonable to verdict that losing an opportunity to invest would be a damage to the corporation. Where the unfair issuance of new shares for maintenance of governance should harm to financial status of the corporation, it would be reasonable to verdict that the corporation was damaged. Thus, I agree with both the majority opinion and the dissenting opinion of the Supreme Court saying that, in case of a Third-party Subscription Method mentioned below, the issuance of convertible bond at considerably reduced price should make a corporation to be damaged. A corporation is regarded as a separate legal entity. So, to decide whether a corporation apart from a shareholder would be damaged or not, would be helpful for development of a corporation. Therefore, it would be resonable to verdict that the issuance of share for a considerably low price against fair market value would a make a corporation damaged, regardless of whether a subscription right would be granted to shareholders with priority ("a Shareholder Subscription Method") or a third-party with priority ("a Third-party Subscription Method"); provided, however, that the director's criminal liability for breach of fiduciary duty in case where subscription right would be granted to shareholders with priority could not be acknowledged due to lack of a recipient a benefit at the expense of a corporation. It should be reasonable that a subscription method used in this case would be interpreted as a Third-party Subscription Method, because almost all of the shares waived by existing shareholders were, exceptionally, subscribed by a third-party. Therefore, in this regard, the dissenting opinion of Supreme Court would be more resonable that the majority opinion. Generally, it could be argued whether criminal penalty, in addition to or apart from, compensation for damage should be imposed in this case. In sum, it should be essential to impose even a criminal penalty to this case, because the spirit of the Constitution of our country such as democratization of economy regime and sound development of corporation scheme should be realized. Finally, we shall make people respect the laws by way of applying the laws to the people equally and enforcing the laws by the judge whom people could respect in terms of integrity and authority.