개정양벌규정에서의 기업의 형사책임: 과실추정설에 대한 반론

Abstract

In Korean there is in general the possibilty of corporate criminal liability persuant to ‘joint penal provision (two-sides penal provision)’. Recently in November 2007, the Korean Constiutional Court held that a joint penal provision in which the individual employer is punished when his or her employee is determined to have committed a crime was unconstitutional, because the joint penal provision had no contents for the culpability of an individual employer and thus violated the constitutionally protected principle of culpability. Therefore, it is today impossible to try to explain ‘joint penal provision’ with using the idea of vicarious liability. After the Korean Constitutional Court’s expression of the unconsitutionality over joint penal provision in November 2007, since December 2008 the Ministry of Justice began to change the old joint penal provision into the new revised joint penal provision. On 26 December 2008, the old joint penal provisions of 69 laws were revised. The new revised jointpenal provision adds only an additional sentence: "If a juristic person, an entity or an individual perform due care and supervison over its employee for the prevention of such a crime, it will be exempted from the punishment". The new rivised joint penalprovision seems to declair that the criminal liability of employer is based on the presumption of negligence, because the inserted sentence means the presumption of negligence. Probably the new form of penal provision, that is understood to be a kind of the presumption of negligence, could let the burden of proof be changed from the public prosecutor to the accused, in other words employer-side. My paper raises the question of how we could determine who is perpetrator in an organizational hierachy, and how we should restrict the number of individuals whose actions may trigger the corporation's liability. A dicision of the Korean Supreme Court provides a useful example for such difficulties. The Supreme Court justified the punishment of two-sides with the following explanation: When the actor is a representative, his acts are presumed to be the conducts of a corporation itself and thus a corporation has to be punished. When the actor is not a representative, his conduct cannot be presumed to be the conduct of a corporation. However, when the actor who is not a representative violates a law, he should be still ‘additionally’ punishedbesides a corporation persuant to joint penal provision. Therefore, the punishment of a representative means the ‘expansion’of punishment that is based on the joint penal provision. When the actor is not a representative, the actor is punished because of his own criminal conduct and a corporation is fined because of its negligence of the supervisional duty. At first glance, the argument of the Supreme Court seems to be sufficient for those cases. However, this argument has a premise that it is not difficult to find an actor. The fine against a corporation is usually not sufficient to deter corporate misbehavior. The orientation of this way of thinking lies merely in an individual (natural person) from the naturalistic point of view. Recent Korean courts’ precedents have affirmed the possibility of co-perpertrator based on negligence. The Korean Supreme Court stated in the case of Seongsu Bridge Accident that criminal liability of several perpetrators could be based on joint previous omission of ‘direct and concrete’ due care as long as the casual nexus was given. In this case the Korean Supreme Court accepted the concept of ‘negligent co-perpetrator’, as long as there exist two important premises: the joint previous omission of ‘direct and concrete’ due care and the casual nexus. However, corporate criminal liability pursuant to joint penal provision is quite different from typical criminal negligence. We need to change from a point of individualistic view to a point of collectivistic view. Because a criminal corporate attitude would pervade the ‘team spirit’ of the corporation, a general, as well as a specific preventive effect is extremely unlikely if the members of a corporation have been influenced and reflected by a criminal corporation attitude. In my opinion, therefore, a corporation could be held liable for the crime its employee committed because of an organizational failure of the corporation. In order to determine corporate criminal liability, it should not focus on individual behavior but rather on collective mechanisms of control. My explanation on joint penal provisionrequires both the commission of an offense in the interest of the corporation and an organizational failure on the part of the corporation. In my opinion, the new approach I described so far, though not complete, is much more comprehensive than the other approaches that have been developed under the limitation of the classical criminal law theory.