법인에 대한 형사책임 귀속의 요건

Abstract

This paper has investigated and specifically suggested the requirements to impose criminal responsibility against corporation. For this, the followings have been conducted: The objective (actus reus) and subjective (mens rea) factors under criminal law have been analyzed from the perspective of corporation. They have been reviewed under the title of 'Penal Justification.' Based on the penal justification, identification theory and organization model that have been suggested as a way of imposing liability have been reviewed. Through this review, criminal acts have been sorted out among various corporate activities. Based on the discussion above, the specific requirements to impose criminal responsibility against corporations are as follows: First, there should be acts associated with corporate employees' duties, and it should be assessable that the potential risk of the corporation has been implemented. Second, even under the case that corporation would not be punished because individuals have merely involved in criminal act, the corporate act could be reassessed by considering all individuals' criminal act. Third, individuals should have no intention to harm corporation. Fourth, corporate intention could be accepted if corporate activities are to blame, or special deterrence is necessary. Fifth, the possibility of other acts by corporation would be admitted when the possibility of other acts by individuals who have involved in risk creation is accepted. In addition, the possibility of other acts by corporation could also be admitted based on the assessment on whether or not multiple individuals could avoid risk creation and realization.