양벌규정의 확대 적용에 대한 비판적 고찰 - 양벌규정을 근거로 부과한 행정처분의 문제점을 중심으로 -

Abstract

This paper focused on the problems of administrative disposition based on the joint penal provision. According to the overflowing of the penal provisions in the administrative law, many people are being penalized with a variety of sanctions. The purposes of this article were to examine that an administrative organ take an administrative measure carefully, thereby to reduce the conflict between two parties. The joint penalty provision punishes the business proprietor when their employees are determined to have violated the law or committed a crime. This regulation is to secure the effectiveness of the administrative law. However, there are rooms for broad applications in the interpretation of 'liability for offense', 'range of employee', 'punishment on the direct offender', 'job relevancy', etc. Furthermore, the punishment and administrative actions are to be dealt with separately, there have been many cases that the punishment and administrative actions were overlapped. Since the joint penalty provision has been adopted for the purpose of closing the legal loophole for sanctions on the corporation, it is not justified to understand reasons for the extended punishment. Followings are the reasons why administrative disposal based on the joint penalty provision cannot be justified. Firstly, in the Acts, the joint penalty provision is provided not in the chapter of administrative disposal, but in the chapter of punishment. In other words, in terms of the legal system, it is not valid to impose the administrative disposal based on the joint penalty provision related with the punishment. Secondly, in the administrative acts. when the punishment and the administrative punishment are overlapped, the application of the joint penalty provision as a tool of the additional sanctions against the offense, or violation of the law can be criticized as double sanctions. Thirdly, under the law, punishment of suspending license is only applied to the case when the license holder himself or herself violated the laws. Thus, suspending license result from employee's offense is against the principle of self responsibility. Fourthly, it is not fair that individuals are dealt with somehow heavily than the corporate. If it is admitted, in order to avoid the administrative disposal, they will propose of the official procedure on the summary order. therefore, this will result in the meangless summay order. In conclusion, administrative disposition to the business proprietor based on joint penal provision can not be justified.