경영판단과 배임고의-그 “법리”의 오용, 남용, 무용

The Korean Supreme Court has established the following doctrine regarding the business decision: The subjective condition for the breach of trust (§§ 356, 355 sec. 2 Korean Penal Code) should only be accepted when a business decision is an intentional act. However, this doctrine is of no particular importance if it should not be understood in substantive terms, but only in procedural sense, because the court did not put a standard of care in determining the subjective conditions, but only mentioned the indicators for the fact-finding without indicative effect. The court also applies the doctrine to cases where it is not a business decision and where the decision was not informed decision-making. However, an informed decision can not be a breach of duty. The knowledge of an informed action does not constitute the subjective element regarding the act of breach of trust. The treatment of the rational business decision as the subjective element is based in this sense on a misunderstanding of the concept of subjective element. Nevertheless, the so-called "business judgment rule” provides a convincing criminal-political argument that the care of asset-related information obligation can be an independent content of the duty of care, which in turn makes it clear that the rule should be related to the objective element of the breach of trust.