양벌규정의 문제점과 한계, 그리고 개선입법의 방향성

Abstract

After in 2007 the Constitutional Court have decided that ‘the provision of punishment against employer and employee’(the provision) the principle of accountability violated, the amendment of the provision was made. However, it is still questionable whether the provision is a true criminal law that can be justified by constitution. The punishment imposition requirements for corporation still do not correspond to the punishment imposition requirements for natural persons. For this reason, legislative improvement is required in all directions. However, in order to know what part of the provision should be improved, it is necessary first of all to understand the shortcomings and limitations of the provision. To meet this end, this article reassessed the provision from a critical point of view. In conclusion, it has been revealed that the provisions are incomplete criminal law with various problems and limitations. The problems and limitations inherent in the provision were found to be due to the fact that the provision deny not only the ability of act and but also the ability of accountability of corporation. In addition, it has been confirmed that the provision should theoretically be supported the corporation's ability to act and responsibility in order to become a true criminal law. This article briefly explains that Luhmann's system theory, starting from an operational constructivist methodology, can be such a theory. In addition, based on this theory, this article proposes specific issues to make a decision in legislating the substantive requirements for imposing punishment on corporations.