업무상배임죄ㆍ특별배임죄의 면책요건으로서 경영판단원칙 도입에 관한 논의 - 대법원 형사판례를 중심으로 -

The purpose of this paper is to examine the problems arising from the lack of clarification of the business judgment rule in criminal cases where the offense of breach of trust in relation to business judgment is at issue, and to suggest appropriate legislative solutions. Recently, in connection with the issue of revising the Commercial Act, there has been a discussion on clarification of the business judgment rule in corporate management activities, and currently, if the breach of trust of directors and executives of companies subject to the business judgment rule is in question, the Criminal Act of occupational breach of trust and the Commercial Act of special misappropriation may be applied, but the occupational breach of trust offense, which has an aggravated punishment provision under the Act on the Aggravated Punishment of Specific Economic Crimes, is applied despite the existence of the principle of priority of the special law. The business judgment rule recognizes that a director or executive of companies has made a business judgment in good faith, aimed at the best interests of the corporation, and that the director has exercised the required duty of care in carrying out his or her duties, provided that there were no procedural irregularities in the exercise of that judgment, and is intended to protect and encourage entrepreneurial business decision-making. The business judgment rule was first conceptualized in England in 1742 and has been refined in the United States, where it is presumed to apply if the four elements of business judgment, disinterested independence, due care, and good faith are present, and has been recognized by law and case law in countries such as the United States, Germany, and Japan, with differences in the degree of specific protection. In Korea, where the criminal penalties for breach of trust are widely used, there is a debate on criminal liability for business judgment, with one side arguing that the principle of business judgment should be introduced into the Criminal Act to exclude criminal liability and the other side arguing that business judgment should be excluded from the crime of brach of trust. The Supreme Court has been partially influenced by the business judgment rule in cases involving the question of the crime of breach of trust for business judgment. In the Daehan Guarantee Insurance Failure Guarantee case, the Supreme Court cited the risks inherent in corporate management activities and the need to protect entrepreneurship, and held that intent to breach of trust in management judgment can be recognized only if there is a recognition of the acquisition of property benefits for oneself or a third party and a recognition of the damage to oneself. On the other hand, in the Hanwha Group and SPP Group cases, the Supreme Court changed its previous attitude that affiliated companies have their own interests as independent legal entities, leaving room to deny the intent to commit breach of trust depending on the details of the specific affiliated company's support activities, which may be considered support activities for the common interests of the corporate group. However, the Supreme Court does not appear to have clearly adopted the business judgment rule, as it uses the term “judgment on business activity” rather than “business judgment rule” and utilizes it as one of the criteria for determining the willfulness of breach of trust. It also leaves room for the application of the business judgment rule to be determined differently in each specific case. As the business judgment rule is not inherent in the current crimes of breach of trust and occupational breach of trust, it is difficult to resolve this issue by legal interpretation, and it is necessary to make explicit provisions to prioritize the application of the crimes of special misappropriation under the Commercial Act to the management activities of directors and others, and it seems appropriate to introduce the contents of the business judgment principle into the Commercial Act and utilize it as a requirement for immunity from the special criminal offense. Specifically, after the first sentence of Article 382(2) of the Commercial Act, “The provisions of the Civil Act regarding delegation shall apply mutatis mutandis to the relationship between the company and the directors.” it is recommended that the second sentence be added, “If a director does not have any interest, exercises due care based on sufficient information and reasonably believes that it is in the best interests of the company, it shall not be considered a breach of duty,” and that Article 622(1) of the Commercial Act be amended to read, “However, there shall be no penalty for the exercise of business judgment pursuant to Article 382(2) of the Commercial Act.”