기업집단 내 계열회사 간 지원행위의 업무상배임죄 성립 여부

Thus far, the Supreme Court’s judgment on whether breach of trust is established by cross subsidization within a corporate group has based on a strict theory of independent corporate personality from the perspective of individual affiliates. Today, however, many companies run their businesses as corporate groups. In corporate accounting as well, consolidated accounting practice such as the International Financial Reporting Standards (IFRS) is widely adopted, under which the parent and subsidiary are treated as a single unit. In this respect, the Supreme Court precedent has been criticized for its failure to adequately reflect the evolving trends in business activities. Internationally, legislation and case law have already reflected today’s evolving business activities centered on corporate groups. Cases in point include: (a) the Rozenblum decision in France, holding that financial subsidization between subsidiaries for the common interest of a corporate group may be exempt from the purview of the abuse of corporate asset; and (b) the Konzern system under German company law, which legally institutionalized the permission for a parent company to issue a directive to the detriment of its subsidiary. The subject case held: (a) determination whether cross subsidization within a corporate group for common interest constitutes a breach of trust deserves more caution, as it may give rise to a risk of pecuniary loss to the subsidizing affiliate; and yet, (b) the intent in breach of trust may be denied as within the reasonable scope of discretion under business judgment, insofar as the cross subsidization is for the common interest of all the affiliates instead of the interests of a specific company or person, and meets the standards delineated under the subject case regarding such matters as designation of the subsidizing affiliate, determination of the subsidization volume and method, and feasibility of adequate reward for subsidization. The subject case is the first ever case to deny the intent in breach of trust regarding business judgment aimed at the common interest of a corporate group. It is viewed that the case recognized the territory of business judgment unique to a corporate group, which had been hard to explain from the theoretical perspective of independent corporate personality, and reflected the evolving trends in business activities centered on corporate groups. Another significance of the subject case is that it delineated concrete standards for determining whether cross subsidization within a corporate group constitutes a breach of trust. Breach of trust has been one of the most controversial offenses. In particular, criticism abounded that the frequent application of breach of trust to entrepreneurs’ decision-making on business activities may undermine free and creative entrepreneurship. Against this backdrop, the subject case is deemed to have put forward a relatively clear and concrete set of standards on business activities, at least regarding whether cross subsidization within a corporate group constitutes a breach of trust. These standards would hopefully help protect legitimate and sound entrepreneurship and alleviate controversy surrounding the application of breach of trust.