형법에서의 행위자의 특정: 개인책임과 단체책임

Abstract

So far the term ‘collective guilt’ has been not well developed in the area of criminal law. However, the necessity to build the firm conception of collective guilt has been growing. Recently Professor Fletcher has developed the new concept of collective guilt. The first step in Fletcher’s argument is to reveal what he perceives as the shortcomings of a liberal tradition embraced by most criminal law theorists. Finally he has developed a concept of the nation as a collective agent and as a potential bearer of guilt. The author tried to apply some implications of Fletcher’s approach to the corporate criminal liability in Korea. 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 Constitutional 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. 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. In my opinion, 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.