형법상 배임죄에 있어서 경영판단원칙에 대한 재검토－형법 규정과 신인의무의 간극－

A series of provisons on criminal Breach of Trust are provided in the Korean Penal Code, the Korean Commercial Code and a Special Act. Directors of corporations in the Korean business community argue that they are threatened by these provisions of Breach of Trust because many directors and officers of large Korean corporations were punished or convicted due to commitments of Breach of Trust. The Business Judgment Rule is based on the fiduciary duty of director of corporation. “The Business Judgment Rule (or the Doctrine of Business Judgment)” in the U.S. specifies that the court will not review the business decisions of directors who performed their duties in good faith with the care that an ordinarily prudent person in a such position would exercise under similar circumstances and in a manner the directors reasonably believe to be in the best interests of the corporation and the shareholders. Many Korean scholars have argued that the Business Judgment Rule should be adopted in criminal Breach of Trust cases so that ordinary business judgment with duty of care and loyalty can be honored. Recently, German code adopted the business judgment as well. There are an opinion that suggests Korea should regard German Corporation Code as a good model to adopt the Business Judgment Rule. However, German Criminal Breach of Trust is so different from Korean code that it is not appropriate to find relevance to adopt same code for criminal defense in Korea. If the Business Judgment Rule is adopted in Korea, the directors would be easily exempted from criminal liability. This article, however, suggests that Korea should not adopt the Business Judgment in the Korean Penal Code. Moreover, Korean courts do not need to consider the rule in criminal cases because of not only the several differences between Korean and American legal background but also the legal issues discussed above.