상법 벌칙규정의 개정과제 - 회사임원 등의 특별배임죄 규정을 중심으로 -

Current Commercial Code Penalities contains few problems and needs an amendment. In spite of several revisions of Commercial Code, the realm of penalty provisions has been left in only limited revision. Therefore, though the Commerical Code is now one of the advanced areas of the law, area of penalty provisions remains far undeveloped. With the development of economy today, the role of companies are increasing, and it became necessary to ensure transparency of the firm. To do this, the activation of the penalty provisions in Commercial Code is required. Among Commercial Code Penalities, ‘special breach of trust in firms’ are the most frequent and many in amount in actual cases. Therefore, I would like to analyze the nature and position of such crimes, and organize the improvement task. In particular, in case of ‘special breach of trust in firms’, ‘no suspicion’ rate is significantly higher than other crimes. Therefore, it is necessary to protect the corporate management from imprudent charges on such crimes. In addition, it is also necessary to reduce the wasting investigation power. To do so, it is necessary to make active use of the business judgment rule, about which number of studies had been made, and which intends not to prove the violation of director's liability, but to refrain judicial review on the problem of management decisions. Therefore, this principle, can be utilized as an investigation guideline, while in making a decision not to institute a public action. Also, areas of other criminal sanctions among Commercial Code Penalities, along with the special breach of trust, needs an efforts of improvement in the future.