경영판단에 대한 배임죄 규정의 적용제한

The restricted application of provisions on breach of trust regarding business people is implemented as follows. First, the provisions on breach of trust under the act on additional penalty for specific economic crimes must be eradicated. Second, for business people, the provisions stipulated for the offense of particular breach of trust under Article 622 of the Commercial Code should be applied, in lieu of the provisions on breach of trust under the general Criminal Code. At present, Article 355 of the Criminal Code or Article 356 of the Criminal code are being applied to business people for their offenses. However, this is in strict violation of lex specialis derogat legi geerali. Third, assuming that Article 622 of the Commercial Code is applied to the offense of breach of trust by a business person, sufficient review must be carried out for any allegations of breach of trust by a business person during the course of business management activities to judge whether the breach of trust was indeed the result of business judgement. Legal precedents in the U.S have established the principle of business management judgement. Korea, too, should adopt this principle to its Commercial Code and stipulate it. Should there be a case of immunity based on the principle of business management, the accused should also be immune from criminal charges. Fourth, as was seen in the ruling of Rozenblum in France, if the offense of breach of trust is the result of transaction between corporate groups, whether the offense constitutes a breach of trust must be judged by acknowledging the actual nature of the groups in question first. Fifth, the burden of proof by the prosecutor must be reinforced. When the distinction between dolus eventualis and negligence is not clear and therefore there is ample room for judgment, it should be made that a ruling on negligence can only be made through extrapolation based on the principle of business management judgement. In doing so, the retroactive review of the judge which serves the function of the principle of business management judgement can be averted. The prosecutor can prove that the case does not meet all the requirements of the principle of business management judgement and therefore can overthrow the extrapolation based on the principle of business management judgement. That is, the principle of business management judgement can be used as a principle of converting where the burden proof lies. There is a need to use the principle of business management judgement in association with the burden of proof when ruling whether there was deliberate intention in the breach of trust. Sixth, when judging whether there was deliberate intent in the breach of trust and taking into account the principle of business management judgement, there is a need to also take into account matters related to internal control in order to incorporate the procedural aspects of the principle of business management judgement. For corporations that set up a sophisticated and proper internal control system and manage it well, the criminal responsibility placed on the corporation as a result of the criminal activity of its employee should be lightened. This easing of the corporation’s responsibility should be expanded to include the easing of the corporation’s civil responsibility, so that even if a loss is incurred on the part of the corporation as a result of the behavior of employees, corporate directors are immune from the charges on negligence on employee oversight. Such incentives should be reviewed for adoption in the Korean legal system in the U.S.A, such measures are currently under review for adoption under the federal sentencing guidelines.