플레처의 집단책임론에 대한 비판적 재론 = Rethinking Fletcher`s Collective Guilt Theory

다국어 초록 (Multilingual Abstract)

Global financial crisis has arrived, which attacked all the world`s economy and made it down. Naturally diverse reflective arguments on economic and legal liberalism have been rising nowadays. In order to regulate and control the corporation`s abuse of power, we need to examine the theory of collective guilt proposed by George P. Fletcher in his famous book the Romantics at War(2002). In his book, Fletcher argued that in some conditions, not only an actor but also the collective entity surrounding him is guilty. For example, Nazi Germany is guilty for pogrom and the Al-Qaeda is also guilty for 9.11. He called this kind of guilt, the collective guilt. However, there are some critical comments about collective guilt theory made by Herbert Morris. He argues firstly, it is unclear to him how much of a contribution the Romantic-Liberal distinction makes to the issues raised by collective guilt, and secondly, it is also unclear what inferences are permissible from collective guilt to the guilt of individual members of the collective. Finally, he criticizes the function of collective guilt which makes it possible distribution between collective and individual guilt, because if it is possible, too many mitigating factors might be taken into account. I defended Fletcher`s theory of collective guilt from all these critical comments. From his view, we can derive very important conclusions necessary to control appropriately the corporations. In certain conditions, in that the internal cohesion between an actor and the collective entity is strong enough for him to regard himself as the representative of whole entity, the collective entity can be culpable. Similarly, if there are the same conditions between a member of corporations and the corporation itself, the corporation can be culpable. In other words, Fletcher`s theory of collective guilt can be applied to reconstruct corporate criminal liability and thus supply us with legal tools that make it possible to treat corporations as criminal actors.