양벌규정에서 법인처벌의 본질

Abstract

This article analyzes some problems in the criminal liability of juristic persons according to the joint penal provision. Lots of Korean special criminal laws have provisions to punish juristic persons simultaneously through joint penal provisions in case of punishing offenders as constituents of juristic persons. The basic type of the joint penal provisions imposes a punishment on the juristic person as same as the offender. Some joint penal provisions have immune provision, which impose no criminal punishment on the juristic person that has no liability for its employees' acts of violation. A number of judicial precedents and theories disputing the criminal liability of juristic persons, because the punishment of the juristic person is concluded the expansion of punishment that is based on the joint penal provision. In November 2007, the Korean Constitutional Court declared that the joint penal provision without the immune conditions to the juristic person violated the principle of liability. After the ruling, many laws that include the joint penal provision have been revised by the same appearance with the immune provision. The principle of liability, however, would not be covered by including such immune provision in the joint penal provisions. There is a comparative view on the criminal liability of juristic persons. Criminal liability of juristic person pursuant to joint sanction is quite different from typical criminal negligence. In order to understand the principle of liability in the joint penal provisions, the material implication of the juristic person’s negligence liability should be explained. Nevertheless, the criminal liability of juristic persons according to the new joint penal provision is still unclear to construe the structure of supervising responsibility of juristic persons. The joint penal provisions refer to the necessity of the principle of liability for punishment of juristic persons. There are arguments whether we could admit the criminal liability of juristic persons or not. In relation with the point of view, we need to analyze the adequacy of those approaches to the criminal liability of juristic persons. As a result of this attempt, I hope that we will get a more advanced understanding about the legal nature of provisions to punish juristic persons.