양벌규정에서 법인과 행위자의 법정형 분리의 필요성 = Seperation of statutary punishment of an Individual and an Organization in the Joint Penal Provision

다국어 초록 (Multilingual Abstract)

According to the current law, if an employee or an employed person of a corporation or an organization commits a crime, he or she shall be punished by a so called joint penal provision. In the most usual form of the joint penal provision, the statutory degree or kinds of punishments against a corporation is subordinate to that of an individual offender. For example, Article 95(Joint Penal Provision) of ``Clean Air Conservation Act`` says, If the representative of a juristic person, or an agent, an employee, other employed person of a juristic person or an individual commits an offense falling under any of Articles 89 through 93 in connection with affairs of the juristic person or individual, not only shall such offender be punished, but the juristic person or individual shall also be punished by a fine under the corresponding provisions. Therefore the maximum of sanction against a corporation or organization is same with that of an individual offender. Additionally the penalties for organization can not include a term of imprisonment. However this lenient attitude for corporations is obviously unfair or unreasonable, because the degree of illegality of an offense by a corporation or an organization is usually higher than that of an individual, and the organization is likely to have more money available to it than an individual. With this mild treatment for corporations, the purpose of punishment, that is, retribution and prevention can not be properly achieved. The more economy grows, the more the corporations or organizations play an important role, and the crimes or offenses of corporations increase. For a just retribution and prevention of crimes of corporations, the current penal policy for corporations should be changed. Firstly, penalties for corporations or organizations are to be set at higher levels than those for individuals. Moreover the more various kinds of sanctions against organizations should be introduced, for instance, corporate probation, restitution, remedial order, community service etc. To take these measures against organizations, the sanction against corporations should be divided with those of individuals. The statutory punishments against organization are to be set separately from those of individual offender, The major advanced countries, U.S.A., Japan, France etc. follow this tendency of reinforcement and diversification of sanction against corporations, and the statutory sanction against corporations is not linked with that of individuals. The main purpose of this paper is to demonstrate the necessity for the division of the statutory punishment against an individual and an corporation. This theme is to be handled de lege lata and de lege ferenda.

참고문헌 (Reference)

1 法制審議會刑事法部會了承, "兩罰規定の在り方について" (1270) : 1991

2 김성돈, "형법총론" 2009

3 김일수, "형법총론" 2008

4 임웅, "형법총론" 2012

5 정성근, "형법총론" 2011

6 김범준, "한국의 신종기업범죄의 유형과 대책" 한국형사정책연구원 2002

7 김용섭, "양벌규정의 입법유형에 관한 법적 검토" 대한변호사협회 (375) : 64-86, 2007

8 김재봉, "기업에 대한 보호관찰의 도입가능성 검토" 한국비교형사법학회 8 (8): 805-820, 2006

9 木村茂樹, "證券取引法改正における法人に對する罰金額の引上について" (501) : 1992

10 志田至朗, "獨占禁止法違反行爲に對する罰則規定の强化改正の考え方" (501) : 1992

11 加藤秀樹, "獨占禁止法違反行爲に對する抑止力の强化" (501) : 1992

12 "獨占禁止法に關する刑事罰硏究會報告書" (501) : 1992

13 堀內國宏, "法人處罰の高額罰金とその適用" (28) : 2002

14 岩橋義明, "法人等企業に對する刑事罰の在り方 - 兩罰規定における罰金額の連動の切離しについて -" (501) : 1992

15 川崎友巳, "企業の刑事責任" 2004

16 Richard Gruner, "Towards an Organizational Jurisprudence: Transforming Corporate Criminal Law through Federal Sentencing Reform" 36 : 407-, 1994

17 Richard Gruner, "To Let the Punishment Fit The Organization: Sanctioning Corporate Offenders Through Corporate Probation" (Fall) : 1988

18 "The Effect of Federal Sentencing Guidelines on Penalties for Public Corporations" 1999

19 Harvey M. Silets, "The Demise of Rehabilitation: Sentencing Reform and the Sanction of Organizational Criminality" 13 : 329-, 1986

20 John C. Coffee Jr., "No Soul to Damm: No Body to Kick: An Unscandalized Inquiry into the Problem of Corporate Punishment" 79 : 386-, 1981

21 Emmett H. Miller III, "Federal Sentencing Guidelines for Organizational Defendents" 1993

22 Jennifer Arlen, "Evolution of Corporate Criminal Liability: Implication for Mangers, Leadership and Governance from the Inside Out" 2004

23 Mark A. Cohen, "Corporate Crime and Punishment: An Update on Sentencing Practice in the Federal Courts, 1988-1990" 71-, 1991