자본금 감소 절차에 있어서의 형법상 이사의 업무상 배임죄와 경영판단

Reduction of capital refers to a company’s act to reduce its capital as a normative criterion for the amount of property or the effects of such an act. Since this act can have material impacts on the interests of shareholders and creditors, Commercial Law applies strict rules to its procedure. Corporations tend to reduce their capital when they face a new situation in their management environment or a change to their economic conditions. Reduction of capital can cause changes to the capital structure of a corporation from the perspective of the legal capital doctrine; thus, the management of the corporation needs to make a careful business judgment. In practical corporate business, there has been some discussion about reducing capital by refunding the amount, in excess of par value, to shareholders in the reduction of capital. In this procedure of reducing capital, a director can be charged with breach of trust. The question of whether a director can be held criminally liable for occupational breach of trust in relation to the reduction of capital is directly connected to the question of whether a director can be recognized for deliberate malpractice in a matter requiring a business judgment. Thus, this study reviewed a set of elements that could be criteria of a director's occupational breach of trust in the implementation process of capital reduction according to the business judgment rule discussed in relation to deliberate malpractice. The focus should be on whether to recognize an intention for illegal gain based on the illegality of a certain act itself in a judgment of deliberate nature. In a judgment of a director's breach of trust, it would be an important criterion to figure out whether conflict of interest is acknowledged between the interest of the corporation and that of a director in the procedure of capital reduction, and whether the director underwent a process of collecting and reviewing enough information.