대표이사의 어음발행과 배임죄의 기수시기 - 대법원 2017. 7. 20. 선고 2014도1104 전원합의체 판결 -

초록

For crimes of promoters and directors of corporations, it is necessary to apply the special felony offense of Article 622 of the Commercial Act rather than the Criminal Act or the Act on the aggravated punishment, etc, of specific economic crimes. There is no difference in crimal composition between the Article 622 of the Commercial Act and the Criminal Act. The Article 622 of the Commercial Act is a special law of the Criminal Act here. Default or tort under civil law is essentially a basis of Criminal breach of trust. So, the concept of ‘profit’ or ‘loss’ on property in the Criminal Act is derived from or extended from the Civil law. Therefore, in order to establish ‘damages’ in the crime of infringement, It should be explained by the concept of damage in civil law. In order to be recognized as a Breach of trust(crime), damages within the ‘scope of compensation’ must occur under civil law. If the Breach of trust(crime) is comprehensively examined, it is difficult to become consumnation time at the stage when the profit or loss is not specified. Every Courts in this case sees Breach of trust(crime) as a crime of endangering some legal interests. Therefore, there is a confusion between the judges as to the ‘risk’ of property. It is inevitable legal instability due to the expansion of ‘dangerous beings’ (concrete dangerous beings) that are not stipulated in the regulation of the criminal law. To limit the punishment of corporate management, only the actual damage is to be recognized as a crime. This method of interpretaion would be consistent with the rules of criminal law and criminal justice. Though the debtor cannot argue(maintain) an individual relationship (human reason) between himself and the former against the Acquirer (current bearer) of promissory note, it is not a realization of the damage on paper. It is hard to define that this is a ‘loss’. The payment itself is the ‘loss’. When some act cause some loss, but the loss is incalculable as the ‘profit amount’, it can not be regarded as ‘the outcome of the act(crime)’. I regard that the District Court and the Court of Appeal is wrong in this case, whereas the Supreme Court’s decision being right. But I agree with the minority opinion of the Supreme Court and oppose to the majority opinion.

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