이사의 배임죄와 경영판단원칙에 관한 연구

Abstract

Regarding the crime of breach of trust, various controversies have been raised, from conflict over the nature of the crime. In particular, this controversy is further amplified when charges of breach of trust are applied to directors who perform work involving risk. Accordingly, this study examines the breach of trust systems in foreign countries 99and Korea from a comparative legal perspective. Germany, Japan, and France have breach of trust provisions, while the United States punishes breach of duty by mail fraud, and the United Kingdom punishes breach of duty by fraud. When it comes to breach of trust, the broad scope of application or ambiguous requirements are commonly pointed out. This is because the crime of breach of trust emerged to criminally regulate various acts that betray a relationship of trust. And these characteristics of breach of trust pose significant problems in corporate management.
 Corporate directors have a fiduciary duty. However, when determining a director's violation of fiduciary duty, the nature of the business judgment must be taken into consideration in order for the director to actively perform his role. Although there were differences from country to country in the way it was accepted as a legal theory, its effectiveness, and whether it was codified, it was accepted in most legal systems. However, since it is a theory in the field of commercial law, it needs to be cautious when introduced in the criminal system. However, it must be accepted for an unified legal order, and the business judgment rule is applied to breach of trust in Germany and Japan as well. In today's business environment, clear standards for legal responsibility must be presented through business judgment rule for creative business activities of entrepreneurs.