형법상 경영판단원칙의 지평확대

Business Judgment Rule(“BJR”) is a intersytemic principle established to resolve collisions and to promote communication between two social systems, business and law. When BJR is applied to crime of Breach of Trust in Korean Penal Code, violator's objective of ‘unjust enrichment’ needs to be verified by the Prosecution under the scrutiny of ‘strict proof’ standard. BJR may be extended in three aspects. First, if acts of ‘unfair support’ between two companies within the same ‘large enterprise group’ under reasonable business decision made from the perspective of the whole group, BJR should be applied if those two acting companies can be considered as virtually one business. Second, BJR can be applied to cases where violation of Breach of Embezzlement is committed through raise of outside(slash) funds. This is to induce those funds which is already created to be used for the company’s rightful business operation. Third, BJR requests criminal intent to be proved under ‘strict proof’ standard, which leads to distribution of burden of proof under the ‘benefit of the doubt’ rule. This means that business actors who raised outside funds only bears the responsibility to prove that those funds were used for the company while the Prosecution bears the rest of the burden of proof, being proof of personal use or clear objective for unjust enrichment.