기업경영 과정에서 발생한 회사의 손해에 대한 이사의 책임과 배임죄의 성부

After Asian financial crisis in 1997, the moral hazard of management in the private firms became big issues in Korea. The social climates of that time are concentrated to punish director and officer who, if only, violated current statutes. Court also applied strict rule in the real case in which deal with the liability of management who engaged in financial investment debacles and they causes the damages for the entrusted res. The director and officer are also liable for the breach of duty as like medical doctor and attorney because they are performed business by borrowing funds from others. Therefore, if they violates rules and breach the contracts with their clients, they should be liable for those behaviors. However, where there is an issue regarding decision of management’s liabilities even if U.S. court applied business judgment rule and restrain from the imposing liabilities of corporation acts. On the other hand, same case in Korea there is an argument that the court applied Criminal Act over the Corporation Act even though the case is essentially engaged in the corporate finance transactions and those attitudes are hinder and drags’s on the development of corporate finance. If that is really the case, here the issue is arise whether the management made a mistake in the decision with mistake and/or negligence for the investment and it brought big loss to the firm, can court punish the director and officer. In addition, currently issuing at the low price of convertible bonds and acquisition by leveraged-buy-out is highly debated in the academic society. Furthermore, the investment loss of derivatives financial vehicles also became a big issue whether state may charge the failure under the investment plan in derivatives instruments transactions with malfeasance of crime. With regard to director and officers’ liability in Commercial Act, can they be punished with the violation of Criminal Act? If so, what are the legal grounds? May policy maker introduce the business judgment rule in the area of criminal law of malfeasance is examined in this article and a stack of controversial issues are argued.