양벌규정에서 개인책임과 단체책임 - 책임주의에 입각한 법인 형사책임의 구조 -

Abstract

This article is to examine the legal problems of the corporate criminal liability in the joint penal provisions (so-called ‘parallel punishment provision’). According to the increased activities of the corporation, the corporate crime is conducted systematically by highly divided organizations. Korea denied corporate criminal ability to solve problems by the joint penal provision according to traditional thought frame of natural person of criminal entity. In regard to the problems with the corporate criminal liability, the joint penal provision for corporation related to supervising responsibility are disputed. We here deal with several problems about the corporate criminal liability in terms of the responsibility principle. The first is about the theoretical consideration into the joint penal provision. The Korean Constitutional Court declared that the joint penal provision without the immune conditions to the corporation violated the constitutionally protected principle of culpability. After the ruling, many laws that include the joint penal provision have been revised by the same appearance with the immune provision. The corporate criminal liability according to the new joint penal provision, however, is still unclear to construe the structure of corporate supervising responsibility. In second, existing theories had problems and limitation because of complexity of corporate organization to discuss dependent model (‘Identification theory’) and independent model (‘Organizational model’) that corporation had criminal liability. The opinion to construct the theory of new corporate criminal liability has been alleged. In relation with the point of view, we need to analyze the adequacy of those approaches to the corporate criminal liability. A number of judicial precedents and theories disputing the liability of corporations, because the punishment of the corporation is concluded the expansion of punishment that is based on the joint penal provision. This paper was founded on theory admitting of corporate criminal competence to be free from traditional thought frame of natural person of criminal entity and to examine new responsibility and standard that corporate should be responsible for the crime in certain conditions.