전환사채의 저가발행을 통한 경영권 승계의 배임성

The Supreme Court upheld that issuing convertible bond at a price noticeably lower than the market value but higher than par value to a third party - the company owner's child - is not a breach of trust. It is based on the premise of interpreting commercial law that company may assign forfeited convertible bond to a third party under the same condition, if already having assigned convertible bond to stockholders. However, the judgement on whether one will be charged with breach of trust or not does not depend on interpretation of commercial law. Criminal law should form and maintain important norms of behavior for social integration on its own principle. There is serious moral defect in issuing convertible bond at low price to a third party, in that it facilitates owner of the company to bequeath his child the management rights by an anomalous method. Traditional interpretation on breach of trust may function here to make up for such defect. In other words, according to the interpretation of clauses on breach of trust in criminal code, it may be acknowledged that directors have the duty to make a larger scale of funds available by issuing forfeited convertible bond to a third party at market value - the active property management duty. Therefore, the act of issuing forfeited convertible bond at low price to a third party is applicable to breach of trust crime. Owner of the company may plead for the ignorance of law, only if he knew the fact but chose to condone it because of a legal advise claiming it does violate the law. It could be a reasonable application of breach of trust to impose probation, consid-ering the owner's contribution to the society or the national economic developments.