법인의 형사책임과 양벌규정의 법적 성격

Abstract

A number of Korean special criminal acts have provisions 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...