理事의 自己去來와 개정 상법 제398조 = A Study on the Director's Self-Dealing

다국어 초록 (Multilingual Abstract)

Discussions about unfavorable acts of corporations in managing activities include many legal considerations. In general cases, first of all, legality of the given acts should be verified. If they are judged to be illegal in their procedures, whether it is possible to assert nullification for the acts by the corporation law or not should be examined. Next, the claim for damages against the actors should be considered. After that, whether the actors have criminal liability or not should be discussed.
In this case, it is difficult and complicated to judge what clauses of the Criminal Code in the substantive law apply to the unfavorable acts. This is a common problem in not only corporate crimes but also crimes involved in economy.
This difficulty of judgement results from the fact that most economic regulations, regarding corporate crimes, have abstract, indefinite and supplementary concepts. In real economy the interested parties affect each other's interests, and so, to reflect each opposing point of view of the interested parties, it is necessary that words and phrases in the statute be abstract and complicated.
Like this, words and phrases in economic regulations tend to become more and more complicated and difficult to understand.
Accordingly, economic regulations should be interpreted in the aspect of the justice practical in managing reality, in that conflicts between the interested parties should be mediated considering economic reality. Today, among legal relations in economy are all kinds of interested parties, including shareholder,creditor, manager, employee, etc. And, when they have their opposing or common interests each, their interests can vary from situation to situation. In this economic reality, it will take much time and effort to lay liability on the director on the basis of fixed and rigid standards. On the other hand, when the director's business judgement in the long run causes the corporation to be unprofitable or suffer damage, the question of whether criminal punishment can be imposed on the director is a very important one requiring careful consideration.
The economic reality has strongly demanded that post approval be accepted.
Although it has been asserted that only prior approval should be accepted in order to exclude directors' conference, it is proper that post approval is accepted in the reality where directors' liability becomes heavier and heavier.

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