양벌규정과 수범자의 처벌범위에 관한 해석론 - 산업안전보건법상 양벌규정을 중심으로 -

Abstract

In 2007, the Constitutional Court ruled that the Joint Penal Provision of the Act on Special Measures for the Control of Health and Welfare Offenses was against for the principle of liability, so it is unconstitutional. After that, in 2011, the Constitutional Court also ruled that the Health and Safety at Work Act was unconstitutional by the same token. As a result, the Joint Penal Provision of the Act in force adds the representative director and personal business owner as a offender(①). And the Act adds the word ‘that outside of the offender will be punished’(②), the exemption provision in provisory clause (③). In this connection, the secondary issue may be unconstitutional because it is against for the principle of liability and the non-anological interpretation principle. Then the first issue may be an imbalance problem of punishment imposed by apply the monetary penalty pari passu to both corporation and personal business owner. First, looking into the secondary problem, the Act is provided that offenders is Sonderdelikt for business owner, anyone and much more. At this point, even if the representative director and personal business listed in the Joint Penal Provision breached the Act, they are unpunished based upon penal provisions. The Supreme Court's precedents and majority opinions argued that actual offender's punishment should be based on penal provisions by recognizing a dual function of the Joint Penal Provision. But the actual offender is punishable by article 33 of the Criminal Code. Therefore, there is little chance that it can be done with impunity. Secondly, if the business owner is a corporation, the owner is liable to fines of up to fifty million won by the Joint Penal Provision. But if the owner is a personal business, it is sentence to five year's imprisonment by the penal provisions. Of course, it is impossible for the owner to impose a fine. Meanwhile, it is possible for owner to detention in a work place, if the owner got a fine. For that reason, it needs to distinguish between corporation and personal business owner to consider fairness. It also should be excluded for the owner to imprisonment in a workhouse.