美國 判例法上 民事金錢罰과 二重處罰禁止의 原則에 관한 硏究

Abstract

Civil money penalties are the harshest civil sanctions that the U.S. federal bank regulators can levy against individuals. Although civil money penalties have been on the books since 1978, the old maximum penalty of $1,000 per day was comparatively modest in size. In the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA), in the aftermath of the savings and loan crisis during 1980s, however, the U.S. Congress substantially expanded the grounds for imposing civil money penalties and hiked the maximum penalties to financially ruinous proportions. Traditionally many people doubted the constitutionality of imposing civil money penalties with other kinds of criminal punishment due to the harshness and the double jeopardy concern. On December 10, 1997, the U.S. Supreme Court in Hudson v. United States held that it does not violate the Double Jeopardy Clause to criminally prosecute people for violations of banking laws and regulations after imposing civil money penalties on them for the same violations. With this decision, the Court strongly disapproved and overruled the analysis employed in United States v. Halper, a seminal double jeopardy case decided just eight years earlier. The General Counsel to the Securities and Exchange Commission (SEC) and the Director of the SEC's Division of Enforcement announced their public opinions that they now had a green light to seek civil money penalties that were also the subject of criminal investigations or prosecutions. Hudson, like Halper before it, represents a major sea change in double jeopardy law with respect to civil money penalties. To understand which case represents the more faithful approach to double jeopardy precedents, Part Ⅱ examines the purpose of the Double Jeopardy Clause, the interests it protects, and its jurisprudence until 1989. Part Ⅲ and Ⅳ review and analyze the Halper and Hudson cases in detail. In particular, Part Ⅲ criticizes the Halper approach seriously based on precedent case laws (Mendoza-Martinez, Ward). Part Ⅴ addresses a harmonizing approach to the Halper-Hudson cases in order to induce more reasonable solution in this context. In addition, it deals with other constitutional issues regarding the substantive due process and excessive fine clauses. Finally, Part Ⅵ is the conclusionary part of this paper.