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@article{ART001570058},
author={이상현},
title={Construction and Legal Policy of Breach of Trust under Korea Criminal Code regarding Corporate Governance in light of two Supreme Court's Decisions on Samsung Everland and SDS},
journal={Journal of Regulation Studies},
issn={1738-7132},
year={2011},
volume={20},
number={1},
pages={113-145}

TY - JOUR
AU - 이상현
TI - Construction and Legal Policy of Breach of Trust under Korea Criminal Code regarding Corporate Governance in light of two Supreme Court's Decisions on Samsung Everland and SDS
JO - Journal of Regulation Studies
PY - 2011
VL - 20
IS - 1
PB - 한국규제학회
SP - 113
EP - 145
SN - 1738-7132
AB - Korean courts have strictly applied breach of trust under Criminal Code art.355 (2) to corporate governance. The Supreme Court through Samgsung Everland and SDS cases adopted new rule that in case of shareholder-allotment-method a board of directors has autonomy to decide the price of new shares while in case of third-party-allotment-method it should issue new shares with price reflecting market price of existent share. This thesis introduced two decisions of the Supreme Court and reviewed their reasonings with constructive theories of elements of breach of trust. In addition, it examined legal history and element of breach of trust under German criminal law with focus on directors' decision and similar crimes of American criminal law. It argued that reasonable legal policy regarding transfer of corporate control would be in company law, tax law on the bases of recent decision of the Supreme Court exempting dual transfer of effects from breach of trust, regulatory regime regarding corporate governance in American law, and derivative suit from minority shareholder of a company shareholder of Samsung Everland. Rough application of breach of trust with less consideration on form, level of illegitimacy and legal principle of each specialized area should be reserved for a case where evidences for serious disloyal act, damage to corporation, and intent to cause the damage are sufficient. Otherwise, regulations under civil law, company law, and tax law will work in a more appropriate way.
KW - Samsung Everland;Corporate Governance;Breach of Trust;Legal Policy;Comparative Legal Research
DO -
UR -
ER -

이상현. (2011). Construction and Legal Policy of Breach of Trust under Korea Criminal Code regarding Corporate Governance in light of two Supreme Court's Decisions on Samsung Everland and SDS. Journal of Regulation Studies, 20(1), 113-145.

이상현. 2011, "Construction and Legal Policy of Breach of Trust under Korea Criminal Code regarding Corporate Governance in light of two Supreme Court's Decisions on Samsung Everland and SDS", Journal of Regulation Studies, vol.20, no.1 pp.113-145.

이상현 "Construction and Legal Policy of Breach of Trust under Korea Criminal Code regarding Corporate Governance in light of two Supreme Court's Decisions on Samsung Everland and SDS" Journal of Regulation Studies 20.1 pp.113-145 (2011) : 113.

이상현. Construction and Legal Policy of Breach of Trust under Korea Criminal Code regarding Corporate Governance in light of two Supreme Court's Decisions on Samsung Everland and SDS. 2011; 20(1), 113-145.

이상현. "Construction and Legal Policy of Breach of Trust under Korea Criminal Code regarding Corporate Governance in light of two Supreme Court's Decisions on Samsung Everland and SDS" Journal of Regulation Studies 20, no.1 (2011) : 113-145.

이상현. Construction and Legal Policy of Breach of Trust under Korea Criminal Code regarding Corporate Governance in light of two Supreme Court's Decisions on Samsung Everland and SDS. Journal of Regulation Studies, 20(1), 113-145.

이상현. Construction and Legal Policy of Breach of Trust under Korea Criminal Code regarding Corporate Governance in light of two Supreme Court's Decisions on Samsung Everland and SDS. Journal of Regulation Studies. 2011; 20(1) 113-145.

이상현. Construction and Legal Policy of Breach of Trust under Korea Criminal Code regarding Corporate Governance in light of two Supreme Court's Decisions on Samsung Everland and SDS. 2011; 20(1), 113-145.

이상현. "Construction and Legal Policy of Breach of Trust under Korea Criminal Code regarding Corporate Governance in light of two Supreme Court's Decisions on Samsung Everland and SDS" Journal of Regulation Studies 20, no.1 (2011) : 113-145.