기업범죄 통제에 있어서 형법의 역할과 한계 - 업무상 배임죄 배제론에 대한 응답

• 영문명: The Role and Limit of Criminal Law in Controlling Corporate Misconducts : A Response to Criticism on the Application of the Crime of Trust Breach
• 발행기관: 한국형사법학회
• 저자명: 曺國(Cho Kuk) 이상돈
• 간행물 정보: 『형사법연구』형사법연구 제19권 제3호 (上), 163~194쪽, 전체 32쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.01.20

영문 초록

  Article 356 of the Korean Penal Code provides the crime of "trust breach." It punishes a person who, administering another"s business, obtains pecuniary advantage or causes a third person to do so from another in violation of one"s duty, thereby causing loss to such person. Article 356 has been criticized for interfering with business judgement too much. Business corporations and some criminal law and corporate law scholars argue that Article 356 is a peculiar provision to result in over-criminalization of disputes in civic society; the "business judgment rule," which is established by American courts, needs to be adopted in Korea in order to waive criminal sanction for business judgement.
  The present Article is a response to this criticism. It agrees with the criticism in that Article 356 has been abused in practice, while it disagrees with the criticism in that business judgment should not be automatically exempted from criminal sanction in Korea yet.
  First, this Article reviews the relevant institutional surroundings in the United States where the "business judgement rule" is working. For instance, the United States has a punitive damage system, which is alien to the Korean legal system, in order to control and deter corporate misconducts. It also examines the crime of "mail fraud" in the United States Code, which plays a similar role to Article 356 of the Korean Penal Code.
  Second, maintaining that Article 356 still has to play its own role under the problematic context of Korean corporate business, this Article attempts to redefine the crime of "trust breach" to deter its abuse. It first argues that only grave breach of trust should be criminalized. For example, Article 356 should be applied to the directors who pursue illegal purposes or private interests that are not allowed in the article of incorporation. It also maintains that danger of pecuniary damage is not enough to constitute the crime and actual pecuniary damage is necessary.
  Third, it analyzes the Samsung Convertible Bond case. Endorsing the decisions by the Supreme Court, it argues the conversion of the bond should be punished by the crime of "trust breach" if it is used not to raise capital but to hand over the controlling power of a corporation to a specific person.

목차

Ⅰ. 들어가는 말
Ⅱ. 기업범죄에 대한 업무상 배임죄 적용 반대론 개관
Ⅲ. 업무상 배임죄 배제론이 의거하는 외국의 법원칙과 제도 재검토
Ⅳ. 업무상 배임죄와 형법의 보충성의 원칙
Ⅴ. ‘삼성 에버랜드 전환사채 저가발행 사건’에 대한 평가
Ⅵ. 맺음말
〈Abstract〉
[토론문] 투자자보호 정책에 복속한 경영형법?

키워드

배임 업무상 배임 기업범죄 경영판단의 원칙 형법의 보충성 trust breach conversion corporate crime business judgement rule