양벌규정의 개정에 따른 법인처벌의 법리적 이해
Criminal Liability of Juristic Persons in Recently Revised Joint Penal Provisions
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It is desirable that joint penal provisions are concerned to maintain the rule of liability, one of the basic principles of criminal law, by noting explicitly that a juristic person is not legally responsible for any employee misconduct in the absence of its negligence in the duty of appointment and supervision of its employees, instead of being limited to penalize the juristic person, in addition to the punishment of the person who has actually committed the violation, in order to cope with ever increasing corporate crime activities. However, the rule of liability would not be substantially covered simply by including such a immunities clause in the joint penal provisions. The recently revised joint penal provisions, which impose no criminal punishment on the juristic person that has no liability for its employees' acts of violation, refer to the necessity of the rule of liability for punishment of juristic persons. Nonetheless, the conventional theory such as the »presumption of negligence theory« or the »strict liability theory« is also that the joint punishment of juristic persons presumes or requests their negligence in not having paid all necessary attention such as through appointment and supervision to prevent illegal acts of their employees. Based on such position, which has been declared several times by the Korean Supreme Court, even if the juristic person's negligence of duties such as appointment and supervision of its employees is not explicitly written into the joint penal provisions, punishment will be imposed only for such responsibilities. In order to realize the rule of liability in the joint penal provisions, thus in oder to ensure that juristic persons are also subject to the rule of liability drawn from the rule of nulla poena sine lege, the meaning of the juristic person's negligence should be clarified and, as a reasonable restriction on the criminal responsibility of juristic persons, the boundaries for the exercise of caution in appointment and supervision of their employees should be delimited. For this reason, corporate compliance programs may be taken into account when assessing criminal liability of juristic persons.
Abstract
It is desirable that joint penal provisions are concerned to maintain the rule of liability, one of the basic principles of criminal law, by noting explicitly that a juristic person is not legally responsible for any employee misconduct in the absence of its negligence in the duty of appointment and supervision of its employees, instead of being limited to penalize the juristic person, in addition to the punishment of the person who has actually committed the violation, in order to cope with ever increasing corporate crime activities. However, the rule of liability would not be substantially covered simply by including such a immunities clause in the joint penal provisions. The recently revised joint penal provisions, which impose no criminal punishment on the juristic person that has no liability for its employees' acts of violation, refer to the necessity of the rule of liability for punishment of juristic persons. Nonetheless, the conventional theory such as the »presumption of negligence theory« or the »strict liability theory« is also that the joint punishment of juristic persons presumes or requests their negligence in not having paid all necessary attention such as through appointment and supervision to prevent illegal acts of their employees. Based on such position, which has been declared several times by the Korean Supreme Court, even if the juristic person's negligence of duties such as appointment and supervision of its employees is not explicitly written into the joint penal provisions, punishment will be imposed only for such responsibilities. In order to realize the rule of liability in the joint penal provisions, thus in oder to ensure that juristic persons are also subject to the rule of liability drawn from the rule of nulla poena sine lege, the meaning of the juristic person's negligence should be clarified and, as a reasonable restriction on the criminal responsibility of juristic persons, the boundaries for the exercise of caution in appointment and supervision of their employees should be delimited. For this reason, corporate compliance programs may be taken into account when assessing criminal liability of juristic persons.