법인의 형사책임과 양벌규정의 법적 성격 = Legal Nature of the Provisions to Punish Corporations: A Defense for the Theory of Liability with Fault

다국어 초록 (Multilingual Abstract)

A number of Korean special criminal acts have provisions to punish to punish corporations as well as persons who have directly involved in corporate crimes. However, the majority of Korean jurisprudence rejects to acknowledge criminal responsibility of corporations for they do not have personality which is the basis for criminal responsibility. They argue criminal sanction for corporations should be replaced by administrative sanction. This Article begins with a brief review of comparative solutions for corporate crimes. It argues further that criminal responsibility of corporations is not a matter of ontology about corporations but of legal policy about corporate crimes; it is necessary to attribute criminal responsibility to corporations, considering the weakness and ineffectiveness of current civil and administrative sanctions for corporate misconducts. Second, this Article analyzes the nature of provisions to punish corporations. It examines which liability the provisions provide, liability with fault or without fault, by checking competing trends of understanding in Korean jurisprudence. Proposing that liability without fault violates the fundamental principle of burden of proof in criminal procedure, this Article argues the provisions to punish corporations should be interpreted to provide liability with fault. So the burden of proof regarding fault is on the government. Third, this Article critically reviews major Supreme Court decisions, and observes that the Court has come closer to the understanding that the provisions provides liability with fault. Finally, this Article argues the special criminal acts` provisions to punish corporations should be standardized, and eventually stipulated as a general provision in the Penal Code.