法人에 대한 兩罰規定의 違憲 與否 (대상결정: 헌재 2009. 7. 30. 선고 2008헌가14 결정)

Abstract

Under the system of Korean criminal law, a legal person is not generally punished and may be punished only when there is a provision that specifically and explicitly provides for the punishment of legal persons, such as joint penal provision. Joint penal provision generally provides that a natural person or a legal person shall be punished when an employee, etc. commits a crime “in relation to the business or property of such a natural or legal person.” The employer’s vicarious criminal liability under the joint penal clause is very often strict liability, in which the person is held liable for the acts or omission of another without any element of his own culpability. The Consitutional Court, in Decision 2005 Hun-Ka 10 pronounced on 29. 11. 2007, found a joint penal provision concerning natural person unconstitutional for its lack of clear requirement of culpability. Then, in Decision 2008 Hun-Ka 14 pronounced on 30, 7, 2009, it also found unconstitutional the joint penal provision for legal person on the similar basis. The purpose of this paper is to critically analyze the legal reasoning of the latter decision. First, the Consitutional Court found that the joint penal provision for legal person violated the rule of law and the principle of “nulla poena sine lege(no penalty without a law)” while it reasoned in the prior decision concerning natural person that the joint penal provision violated the Article 10, which provides for human dignity and right to pursue happiness. But under the present system of Korean criminal law which generally denies criminal liability of legal person, the vicarious criminal liability of legal person is a matter of statutory policies subject to Congres’s legislative power, not a matter subject constitutional scrutiny. Neither the rule of law and the principle of “no penalty without a law” can be valid constitutional basis for the decision without reference to the Article 10. Second, the Constitutional Court rejected as impermissible interpretation (not within the possible meaning of the text) the Supreme Court’s present reading of the joint penal clause as it required “he employer’s(natural or legal person) negligence in employment(hiring or supervision)” in spite of lack of clear requirement. Considering that the original purpose of the textual approach to the criminal law provisions was to apply criminal law strictly, however, the Supreme Court’s unavoidable interpretation adopted to restrict the strict criminal liability of legal person should be permitted as constitutional interpretation.