이사의 경영판단행위와 배임죄의 성부

The present Criminal Act art. 355 ② prescribed that a person who, administering another's business, obtains pecuniary advantage or causes a third person to do so from another in violation of ones duty, thereby causing loss to such person, shall be punished by penal servitude for not more than five years or by a fine not exceeding fifteen million Won. And Criminal Act art. 356 prescribed about occupational breach of trust and Commercial Act art. 622 - 624, distinguished from Criminal Act, prescribed about the special breach crime of trust that is committed by a initiator or executive of company etc. We interpretate the special breach crime of trust of Commercial Act is a special regulation of the breach crime of trust of Criminal Act. But, because of vagueness of this provision, it is caused many dispute about essence and subject of the beach crime of trust. In these days, especially, there are many discussions about admission of criminal responsibility against director's acts in business. Some opinions deny director's criminal responsibility because the excessive intervenes of criminal law in the area of the corporate management restrains the creative challenge of directors. These opinions assert that business judgement rule that it is established in the precedent of the U.S. Supreme Court have to be adopted in the director's acts in business. But on the other hand, there are opinions that director's acts in business have to suffer as beach of trust if they violated a provision of the current law regardless of business department rule. These opinions emphasize the social responsibility of the corporate. So, in this paper I will analyze 'business department rule' and examine about whether this rule is suitable or not to exclude criminal responsibility against director's business acts.