획일화된 양벌규정 제도의 개선방향에 대한 소고

Abstract

Recently, there was a judicial precedent that a chance to look back again on The Joint Penal Provision. In April 2019, the Constitutional Court ruled that Article 94(The Joint Penal Provision) of 「TRADE UNION AND LABOR RELATIONS ADJUSTMENT ACT」 was unconstitutional. It was a reason that it is against the principle of accountability for a corporate or individual's business owner to be penalized the criminal punishment regardless of whether to responsibility of them. In other words, Article 94 is imposed for them to a criminal punishment immediately without stipulating the independent responsibility of them. But in November 2007, the Constitutional Court had ruled that The Joint Penal Provision was unconstitutional. And then, it have amended to The Joint Penal Provision that be added to a clue to avoid a criminal punishment about punishing them immediately without stipulating the independent responsibility of them. Nevertheless, it is surprising that The Joint Penal Provision still exist and was unconstitutional. Through these precedents, it is needed for The Joint Penal Provision to be revised and supplemented on the standardized The Joint Penal Provision applied in current. Thus, in this paper, the directions are the legislative improvement of The standardized Joint Penal Provision. There are ① Direction to supplement to the components of The Joint Penal Provision, which includes a case that the direct’s actor implements a criminal act by order, instruction, request, approval, offer from them, ② Direction that the fine penalties for them must be separated and it shall be defined as the punishment to measures for various penalties (corporate dissolution, suspension and cancellation of corporate activities, punitive reparations, exclusion of publicizing contracts, publication to violation of the law and the corporate probation system) for a corporate business owner, ③ Direction that must include an unlicensed organization in subject to the application of The Joint Penal Provision other than corporate or individual, ④ Direction of adding a statement of their responsibility as the violation of direct’s actor is lead to a corporate or individual's action. Although The Joint Penal Provision proposed in this paper would not be perfect, it is hard work to take a step forward for development. Through The improved Joint Penal Provision, If it function to maintain public order and prevent and punish corporate crimes, it is expected to the developing of The Joint Penal Provision and impacting our lives on overall fields. Since The Joint Penal Provision has been introduced first, seventy years have passed. To be responsible for the next seventy years, Researchers and practitioners would pay keen attention to The Joint Penal Provision.