경영판단행위의 형사규제 -경영판단원칙의 입법화 방안을 중심으로-

Nowadays, economy has become more unpredictable and business competition has been more fierce thus by making it harder for a company to survive, and requiring more active and progressive business judgments. A society which doesn't risk to manage an active business plans will not only fail to make a progress but also not even be able to make a status quo and consequently, regress. Nevertheless, in South Korea, failed business judgments are subject to both civil indemnification and criminal penalties. On the other hand, there also is a risk of a manger -a manger who takes care of an asset of a corporate which separate ownership and management- intentionally managing carelessly thus by endangering the company’s asset, and in this case, criminal penalties on the breach of trust effectively controls such risk. So control on business judgment has both sides, and in order to rationally control such business judgment, legal principles sufficing such peculiarity of such business judgment are required: Business Judgment Rule. Business judgment rule functions as a safe harbor only if it limits primary subject of examination into procedural, subjective requirements like it does in U.S. or Germany. For last 10 years, the details of procedural, subjective requirements has been set through several civil and criminal cases in South Korea, and has been used as a standard for judging business judgment. However, it has not yet succeeded to function as a safe harbor. Furthermore, in the cases of which responsibility of business judgment is being a problem, from the beginning of examination, all components which finally result in such business judgment is being subject to examination, as well as the results after the business judgment is being subject to examination, thus by leaving a possibility of a biased judgment. This shows that, in order for the business judgment rule to function as a safe harbor, we cannot no longer rely on the interpretation of cases, but should legalized such legal principle.