준법감시인과 준법지원인 형사처벌에 있어서의 가벌성 제한에 대한 범죄론적 검토 - 횡령·배임·사기죄 등 의무범죄에 있어서의 정범과 공범의 구별을 중심으로 -

Abstract

Both Korea and the United States are generally positive about the effectiveness of the compliance monitoring system within corporations. The important thing will be to determine whether or not to be criminally punished and the degree of compliance monitoring within the corporation. The distinction between whether to punish the omission of a compliance officer as a regular offender or an aid offender for illegal acts in a corporation is a difficult issue because there are complex aspects in judging the act of execution under the criminal law. Above all, will there be a clue to the solution of the composition of the offender as an issue of the compliance officer? It should be possible to reduce punishment for compliance officers as much as possible. Corporate criminal crimes related to companies in Korea can be classified into embezzlement, breach of trust, and fraud. Since there are no criminal punishment precedents for compliance applicants in Korea so far, it is difficult to discuss precedents for specific corporate crimes. Therefore, criminal responsibility related to compliance applicants should be discussed, focusing on embezzlement, breach of trust, and fraud, which are the types of general corporate criminal crimes. The status of a compliance officer is regulated by financial-related laws, including the Capital Markets Act, and the status of a compliance officer is regulated by commercial law. Compliance applicants are closer to the status of legal supervisors than compliance monitors. Although there are some differences in roles depending on the governing law, rather than focusing on the subtle differences in roles, this paper will discuss the status of poor guarantors of criminal compliance officers rather than strict distinctions between compliance officers and compliance officers. Corporate managers may be held responsible even if they do not have specific instructions for executives and employees. Since members of a corporate organization work with the possibility of dismissal, it is possible to transfer responsibility to the employer. Nevertheless, there is no precedent in Korea that recognizes criminal responsibility to corporate managers in relation to corporate compliance monitoring, so the awareness of criminal punishment, which is compliance support, is insignificant. On the other hand, in the case of the recently enforced Serious Accident Punishment Act, corporate managers (CEOs) have been conducting corporate management activities defensively to avoid criminal liability since the enforcement of the Serious Accident Punishment Act. If corporate misconduct occurs frequently, criminal punishment, which is a compliance support, will emerge in earnest, just like criminal punishment for the Serious Accident Punishment Act.