형사상 배임죄의 입법례와 주체에 관한 고찰

Abstract

The present Criminal Act art. 355 ② prescribed that a person who, administering another’s business, obtains pecuniary advantage or causes a third person to do so from another in violation of ones duty, thereby causing loss to such person, shall be punished by penal servitude for not more than five years or by a fine not exceeding fifteen million Won. And Criminal Act art. 356 prescribed about occupational breach of trust and Commercial Act art. 622-624, distinguished from Criminal Act, prescribed about the special breach crime of trust that is committed by a initiator or executive of company etc. We interpretate the special breach crime of trust of Commercial Act is a special regulation of the breach crime of trust of Criminal Act. But, because of vagueness of this provision, it is caused many dispute about essence and subject of the beach crime of trust. In these days, especially, there are many discussions about admission of criminal responsibility against director’s acts in business. Some opinions deny director’s criminal responsibility because the excessive intervenes of criminal law in the area of the corporate management restrains the creative challenge of directors. So, in this paper, I will analyze the regulations of the other countries about the beach crime of trust and the scope of the establishment of the beach crime of trust of ‘the Criminal Act’, especially in priority on the subject. And I will check about justification of the precedent of the Supreme Court that have punished the director acts in business by beach crime of trust.