배임죄 판단기준의 체계화와 구체화 - 기업의 부당 기부 및 후원행위사례를 중심으로 -

Corporate donations and sponsorships are often perceived as public-spirited or socially beneficial activities. However, when combined with managers’ private motives or political and social pressures, they may serve as a means of improperly diverting corporate assets. For this reason, donations and sponsorships constitute a representative category of conduct that requires an independent analytical framework in assessing breaches of duty under the crime of breach of trust. In this context, case law has relied on an inductive approach that lists various factors—such as corporate purpose, the nature of the donation, social benefits, and shareholder disadvantages—and assesses them through overall consideration. While this approach allows flexibility on a case-by-case basis, it entails limitations in terms of legal predictability. Against this background, a structured set of criteria is required to assess whether donations and sponsorships exceed the permissible limits of asset management, focusing on their economic character and their connection to corporate interests. This study proposes the concept of “unacceptability to the principal” as an overarching standard for assessing breaches of duty, and examines the permissibility of donations and sponsorships through a two-step framework: first, by assessing their relationship to corporate interests, and second, by scrutinizing whether the decision exceeds the substantive limits of managerial discretion. In this process, factors such as transactional normality, consistency with corporate objectives, proportionality of the amount, procedural transparency, and conflicts of interest are considered in combination. Given the long-term and intangible nature of donations and sponsorships, a differentiated approach is also required in assessing pecuniary loss. Rather than relying solely on the amount of expenditure or abstract notions of risk loss, a more adequate framework incorporates the economic value of contractual consideration— such as claims arising from sponsorship agreements—into the overall calculation. This structured approach contributes to reducing the abstractness and arbitrariness of breach-of-trust assessments, while mediating the tension between the principle of subsidiarity in criminal law and managerial autonomy in corporate decision-making.