형사책임에 대한 경영판단원칙의 적용

The business judgment rule has been developed by judicial precedents under the law system of America. Germany has already incorporated the rule to private law, and it influenced many domestic cases and law theories in both private law and criminal law. Concerning the domestic adoption of the rule, It is unreasonable to merely oppose it because it overly restricts the criminal liability of directors. It is also not sufficiently reasonable to argue for adoption of the rule just to guarantee progressive managemental activities of directors. Above all, the attribute of the business judgment rule should be considered. In this respect, since the business judgment contains a part inappropriate to be applied to the legal judgment, the business judgment rule should be adopted domestically. The business judgment rule is a legal principle to determine the violation on the duty of care. Regarding the violation on the duty of care, which is the premise of the decision on the compensation responsibility of directors, the legal principle of the business judgment rule is already being heavily considered domestically. The criminal liability of directors goes same regarding the violation on the duty of care. Therefore if the rule should be adopted to domestic cases concerning the criminal liability of directors, it should be adopted to decisions on the breach of trust itself which premises the violation on the duty of care.