기업 사이코패시와 집단책임의 이론
Corporate Psychopathy and Collective Guilt
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Global financial crisis has arrived, which attacked all the world's economy and made it down. Naturally diverse reflective arguments on economic and legal liberalism have been rising nowadays. They are mainly focused on corporations' pathological pursuit of interests and power. Today, the corporations have risen to dominance in most sectors of our society. To avoid and control the overuse of corporations's power, it is necessary that we should regard them as a psychopathic entity. As a matter of fact, so many psychiatrists and psychologists argued the traits of corporations are very similar to those of psychopathy that even legal scholars also are more and more inclined to take corporate psychopathy into consideration. In order to regulate and control the corporation's power and make it not be abused, we need to examine the theory of collective guilt proposed by George P. Fletcher in his famous book the "Romantics at War(2002)". In his book, Fletcher argued that in some conditions, not only an actor but also the collective entity surrounding or behind him is culpable. For example, Nazi Germany is culpable for pogrom and the Al-Qaeda is also culpable for 9.11. He called this kind of guilt, the collective guilt. From his view, we can derive very important conclusions necessary to control appropriately the corporations. In certain conditions, in that the internal cohesion between an actor and the collective entity is strong enough for him to regard himself as the representative of whole entity, the collective entity can be culpable. Similarly, if there are the same conditions between a member of corporations and the corporation itself, the corporation can be culpable. In other words, Fletcher's theory of collective guilt can be applied to reconstruct corporate criminal liability and thus supply us with legal tools that make it possible to treat corporations as criminal actors.
Abstract
Global financial crisis has arrived, which attacked all the world's economy and made it down. Naturally diverse reflective arguments on economic and legal liberalism have been rising nowadays. They are mainly focused on corporations' pathological pursuit of interests and power. Today, the corporations have risen to dominance in most sectors of our society. To avoid and control the overuse of corporations's power, it is necessary that we should regard them as a psychopathic entity. As a matter of fact, so many psychiatrists and psychologists argued the traits of corporations are very similar to those of psychopathy that even legal scholars also are more and more inclined to take corporate psychopathy into consideration. In order to regulate and control the corporation's power and make it not be abused, we need to examine the theory of collective guilt proposed by George P. Fletcher in his famous book the "Romantics at War(2002)". In his book, Fletcher argued that in some conditions, not only an actor but also the collective entity surrounding or behind him is culpable. For example, Nazi Germany is culpable for pogrom and the Al-Qaeda is also culpable for 9.11. He called this kind of guilt, the collective guilt. From his view, we can derive very important conclusions necessary to control appropriately the corporations. In certain conditions, in that the internal cohesion between an actor and the collective entity is strong enough for him to regard himself as the representative of whole entity, the collective entity can be culpable. Similarly, if there are the same conditions between a member of corporations and the corporation itself, the corporation can be culpable. In other words, Fletcher's theory of collective guilt can be applied to reconstruct corporate criminal liability and thus supply us with legal tools that make it possible to treat corporations as criminal actors.
참고문헌 (38)
- 강동범, "경제범죄와 그에 대한 형법적 대응", 형사정책, (7) (1995)
- 곽관훈, "기업규제의 패러다임전환과 내부통제시스템", 경제법연구, 8(1), pp.27~51 (2009), 한국경제법학회
- 김재봉, "기업에 대한 보호관찰의 도입가능성 검토", 비교형사법연구, 8(2), pp.805~820 (2006), 한국비교형사법학회
- 김일수, "새로 쓴 형법총론 제9판" (2003)
- 김화진, "기업지배구조와 기업금융" (2009)
- 박상기, "형법총론" (2009)
- 송기동, "영미 기업범죄 형사책임의 전개", 형사정책, 20(2), pp.41~70 (2008), 한국형사정책학회
- 신동운, , 고시연구 (1998)
- 안성조, "사이코패스 I - 범죄충동 ․ 원인론 ․ 책임능력 -" (2009)
- 오영근, "형법총론" (2005)
- 윤영신, "회사지배구조에서 법규제(Legal Rule)와 소프트 로(Soft Law)의 역할 및 관계", 서울대학교 법학, 48(1), pp.85~104 (2007), 법학연구소
- 법인의 형사책임에 관한 비교법적 연구, "이기헌", 한국형사정책연구원, ~ (1996)
- 이재상, "형법총론" (2006)
- 이천현, "법인의 범죄주체능력과 형사책임", 형사정책연구, 22 (2004)
- 임웅, , 고시연구 (1998)
- 임웅, "형법총론" (2003)
- 조국, "법인의 형사책임과 양벌규정의 법적 성격", 서울대학교 법학, 48(3), pp.60~76 (2007), 법학연구소
- 조병선, "형법에서의 행위자의 특정: 개인책임과 단체책임", 서울대학교 법학, 50(2), pp.591~614 (2009), 법학연구소
- 조홍식, "법에서의 가치와 가치판단: 원고적격의의 규범학(Ⅰ)", 서울대학교 법학, 48(1), pp.160~203 (2007), 법학연구소
- Alison Abbott, "Scanning Psychopaths", Nature, 13 (2007)
- Ann Foerschler, "Corporate Criminal Intent: Toward A Better Understanding of Corporate Misconduct", California Law Review, 78 (1990)
- C. Roxin, "AT, 2.Aufl." (1994)
- George P. Fletcher, "Romantics at War: Glory and Guilt in the Age of Terrorism" (2002), Princeton Univ. Press
- George P. Fletcher, "The Storrs Lectures: Liberals and Romantics at War: The Problem of Collective Guilt", Yale Law Journal, 111 (2002)
- Günter Heine, "Die Strafrechtliche Verantwortlichkeit von Unternehmen" (1995)
- Herbert Morris, "George Fletcher and Collective Guilt: A Critical Commentary on the 2001", Storrs Lectures, Notre Dame Law Review (2003)
- Joel Bakan, "The Corporation: The Pathological Pursuit of Profit and Power" (2004)
- Keisha A. Gary, "Congressional Proposals to Revive Guilt by Association: An Ineffective Plan to Stop Terrorism", Gergetown Immigration Law Journal (1994)
- Martin J. Weinstein, "Criminal Law's Greatest Mystery Thriller: Corporate Guilt through Collective Knowledge", New England Law Review (1994)
- "Montague Ullman의 Corporate Psychopathy", ~ (2004)
- Robert D. Hare, "Without Conscience" (1999), The Guilford Press
- Seth F. Kreimer, "Note, Reading the Mind of the School Board: Segregative Intent and the De Facto", De Jure Distinction, 1976, pp.86, 317~
- Stoner, "Corporate Criminal Liability for Homicide: Can the Criminal Law Control Corporate Behavior?", Southwestern Law Journal, 38 (1985)
- V.S. Khanna, "Corporate Criminal Liability: What Purpose Does It Serve?", Harvard Law Review, 109 (1996)
- William B. Michael, "Romanticizing Guilt", Yale Law Journal, 112 (2003)
- 찰스 P. 킨들버거, "광기, 패닉, 붕괴: 금융위기의 역사" (2006), 굿모닝북스
- Rita Carter, "뇌 맵핑마인드" (2007), 말글빛냄
- Viral V. Acharya, "미국발 글로벌 금융위기의 진단과 처방" (2009), 교보문고