http://chineseinput.net/에서 pinyin(병음)방식으로 중국어를 변환할 수 있습니다.
변환된 중국어를 복사하여 사용하시면 됩니다.
일반연구논문 : 대표권을 남용하여 약속어음을 발행한 경우 배임죄에 관한 연구 - 대법원 2013. 2. 14. 선고 2011도10302 판결을 중심으로 -
이훈종 ( Hun Jong Lee ) 한국법정책학회 2015 법과 정책연구 Vol.15 No.1
According to the ruling considered in this paper, when the opposite party obtains promissory notes through a representative director who has abused his authority, and possesses promissory notes that are invalid in relations with the company, the r presentative director, without special circumstances, has caused a risk of actual harm against the company in its assets, and, therefore, is to be punished for malfeasance. However, according to a Supreme Court ruling issued prior to this ruling, since the representative director abused his authority when he issued a notarial deed of promissory notes to his creditors under the company`s name, the representative director cannot be considered to have caused the company a risk of actual harm in its assets if the creditors were also aware of or fully capable of discovering the fact that the director abused his authority; and, therefore, it was ruled that the representative director is not guilty. Although the relevant facts of the two rulings are quite similar, there is a significant difference in deciding whether malfeasance applies or not. It is more reasonable to make consistent decisions based on the provisions of criminal law according to the principle of nulla poena sine lege. When the other party has acquired the promissory notes but keeps the promissory notes that are invalid in relations with the company, though there has been a risk of causing damage to the company, there has not yet been a damage to the company in actuality. Though a perpetrator has put into action, since the result of the action does not take place, the representative director who has abused his authority, should therefore be punished for attempted malfeasance (Criminal Code Article 359). A punishment for attempted crime may be mitigated to be less severe than that of consummated crime (Criminal Code Article 25 Clause 2). If the representative director pays the amount of the promissory notes with his own assets, he has committed a futile attempt of malfeasance. Since it falls under the category of a perpetrator voluntarily stopping an action that he has put into action or preventing the result of the action from taking place, the punishment should be reduced or waived (Criminal Code Article 26). If, however, the company pays the amount of the promissory notes, there has been actual harm to the company, and he therefore should be punished for consummated malfeasance (Criminal Code Article 356). According the Supreme Court ruling, the perpetrator has caused a risk of actual harm against the company in its assets, and is not to be punished for attempted malfeasance, but is to be punished for consummated malfeasance. The ruling prevents the difficulty of the cumbersome calculation from taking place. But there is doubtful legality according to the principle of nulla poena sine lege. Therefore I propose legislative study on the revision of Criminal Code Article 359 (Attempts to commit any crime of Articles 355 through 357 shall be punished).
표현대리인, 표현대표이사 및 권한을 남용한 대표이사를 통하여 어음을 취득한 상대방과 제삼취득자의 보호요건에 관한 연구
이훈종(Lee, Hun-Jong) 한양법학회 2014 漢陽法學 Vol.25 No.1
In this paper, we introduce Supreme Court rulings and theory on the requisite for protection of the other party who has acquired promissory notes through an apparent agent or an apparent representative director, or directly through a representative director who abused his authority, and review its validity. The Supreme Court of Korea suggests different legal principles regarding the requisite for protection of the other party who has acquired promissory notes through a representative director who abused his authority. The requisite for protection of the other party who has acquired promissory notes through a representative director who abused his authority is divided into the following: a Supreme Court ruling which says that the other party is protected if he had no malice (malice = prior knowledge), a ruling which says that he is protected if there was no gross negligence on his part, and a ruling which says that he is protected if there was no fault on his part. According to the Supreme Court ruling, an inequitable result might occur in the following cases. When the legal principle of apparent authority is applied, there are cases where the third party purchaser cannot be protected even if he exercises due diligence, but when the legal principle of cutting off of personal defense is applied, the third party purchaser can be protected even if he does not exercise due diligence. There is a need to consistently organize the legal principles proposed chaotically by numerous cases on the requisite for protection of the other party and the third party purchaser who have acquired promissory notes directly through an apparent agent, an apparent representative director, or a representative director who abused his authority. If there is gross negligence on the part of the person who has acquired the promissory notes, it is reasonable to not hold the debtor accountable for the promissory notes, because it is not necessary to protect a person who trades promissory notes without exercising any due diligence at all.