법인의 형사책임과 양벌규정의 해석과 적용

김성돈(Kim, Seong Don) 한국법학원 2018 저스티스 Vol.- No.168

법인의 형사책임과 양벌규정의 해석 Ⅰ. 양벌규정은 법인처벌을 위한 유일한 법적 근거로서 형법총칙규정의 적용을 배제한다. 이 때문에 법인의 형사책임을 인정함에 있어서 제기될 수 있는 수많은 형법이론적 쟁점들도 오직 양벌규정의 해석을 통해서만 해결될 수 있다. 그러나 대법원 판결의 판시문에는 “양벌규정에 따르면” 또는 “양벌규정을 적용함으로써”라는 말은 있지만, 양벌규정의 어느 부분을 그리고 어느 개념요소를 어떻게 해석한 것인지는 드러나 있지 않은 경우가 많다. Ⅱ. 이글은 장차 형사실무가 양벌규정을 체계적으로 해석하고 적용할 수 있는 토대를 마련하는데 목적이 있다. 이를 위해 이 글은 대법원이 양벌규정을 적용하면서도 양벌규정에 대한 구체적인 해석까지 나아가지 못한 13개의 대법원 판결을 대상판결로 삼아 대법원이 출발점으로 삼고 있는 태도를 추론해 보는 동시에 대법원이 판결문 속에서 생략하고 있는 논증이 무엇인지를 찾아보았다. 그리고 나서 대법원이 견지했어야 할 해석태도나 제시했었어야 할 논거들을 지적하였다. 무엇보다도 대법원이 양벌규정의 법적 성격을 어떻게 해석하고 있는지를 적극적으로 밝히지 않고 있는 문제점을 부각시켰다. 이를 통해 예컨대 형사책임이 귀속되는 법인에게 적용될 구성요건적 불법(적용법조)이 무엇인지 또는 자연인 간 뿐 아니라 법인 간에도 공동정범의 성립이 인정될 수 있는지 등 법인에게 형사책임을 지움에 있어 해결되어야 다양한 쟁점들에 대해 일관성 있는 태도를 보여주고 있지 못한 점을 비판하였다. Ⅲ. 마지막으로 이 글은 대상판결들이 불명확성과 불충분성 등을 보이고 있는 가장 주된 원인은 양벌규정 자체가 주는 정보내용의 빈약성에 있음을 지적하였다. 이 때문에 현행 양벌규정의 행간이나 그 배후의 이론들을 끝까지 해석해내지 않으면 법인을 형사책임을 인정하는 일의 문제점과 한계들이 제대로 드러나지 않는다. 따라서 장차 양벌규정을 개정하는 체계내적인 개선방안이나 양벌규정의 체계를 뛰어넘어 새로운 법인처벌모델을 지향하는 입법론의 전개가 성공적으로 이루어지기 위한 첫걸음도 현행 양벌규정에 대한 철저한 해석론이 먼저 전개되어야 한다는 점을 강조하였다. Ⅰ. Joint penal provisions are the only legal basis for corporate penalties and exclude the application of the provisions of the General Criminal Law. For this reason, a number of criminal theoretical issues that can arise in recognizing corporate criminal responsibility can be solved only through interpreting joint penal provisions. However, in the Supreme Court’s judgment, there is a saying, that “according to joint penal provisions” or “by applying joint penal provisions”, but there are many cases in which it is not clear which part and how to interpret the conceptual elements of joint penal provisions. Ⅱ. The purpose of this article is to lay the basis for the systematic interpretation and application of joint penal provisions. To this end, this article adopts the Supreme Court’s ruling on 13 cases where the Supreme Court has failed to improve its interpretation while adopting joint penal provisions. Through analyzing and evaluating the ruling of the object judgment, I try to infer the attitude of the Supreme Court as a starting point and look at what the Supreme Court has omitted in the judgment. Then I pointed out specifically what were the theoretical background and reasoning the Supreme Court should have shown for interpreting joint penal provisions. First of all, the Supreme Court does not obviously interpret the legal nature of joint penal provisions, which is a prerequisite for determining the norm(Tatbestand) to be applied to juristic person for allocating criminal liability to juristic person. For this reason, the Supreme Court does not show a consistent attitude toward various issues that may be raised in the imposing the criminal liability to juristic person, such as the complicity among juristic person. Ⅲ. The main reason for the uncertainty and insufficiency of the judgments is the poorness of the contents of information of joint penal provisions themselves. It is diffcult for us to understand the problems and limitations of current joint penal provisions unless they are interpreted persistently and thoroughly till the end. Therefore, the first step toward successful implementation of the legislation that aims at a new corporate punishment model, whether it goes beyond the system of internal improvement measures or it means just the amendment of joint penal provisions for the future, should be based on thorough interpretation of the current joint penal provisions.

법인의 양벌 규정 위헌판결에 대한 고찰 -헌법재판소 2009.7.30 선고 2008헌가24판결을 중심으로-

박창석 ( Chang Seok Park ) 순천향대학교 사회과학연구소 2010 사회과학연구 Vol.16 No.1

According to the overflowing of the administrative penal provisions, there are about 350 joint penal provisions and they`re rapidly increasing together with the enactment of the administrative act. But there is no clear basis between the law with joint penal provisions and the law without joint penal provisions. In case of the administrative punishment including joint penal provisions checks the sanction of the administrative law violation and the comprehensive system of the administrative sanction for a duty realization under the administration. And that sanction method shouldn`t be excessive, also meets the case, and has a effect to control the violation of law. For ensuring the effectiveness must avoid the over sanction, it is the problem that the sanction can`t control the illegalty restraint, because of the weak sanction. The joint penal provisions basically pursue the fundamental right`s guarantee and the administrative object`s achievement. The type of the standing joint penal provisions imposes a fine on the corporation as same as the offender. And this is the most general legislation type. But if the joint penal provisions are unified by the basic type without the immune provisions, the party`s legal position will be weak, and the corporation will be slightly punished, because the corporation`s fine is the same as the offender`s. Considering this problem, we should enact that the corporation`s punishment don`t connect with person`s punishment. And it is necessary that the diverse immune provisions should be connect with the joint penal provisions.

양벌규정의 문제점 및 개선방안

김용섭(Kim Yong-Sup) 행정법이론실무학회 2007 행정법연구 Vol.- No.17

According to the overflowing of the administrative penal provisions, there are about 350 joint penal provisions and they're rapidly increasing together with the enactment of the administrative act. But there is no clear basis between the law with joint penal provisions and the law without joint penal provisions. In case of the administrative punishment including joint penal provisions checks the sanction of the administrative law violation and the comprehensive system of the administrative sanction for a duty realization under the administration. And that sanction method shouldn't be excessive, also meets the case, and has a effect to control the violation of law. For ensuring the effectiveness must avoid the over sanction, it is the problem that the sanction can't control the illegality restraint, because of the weak sanction. The joint penal provisions basically pursue the fundamental right's guarantee and the administrative object's achievement. The type of the standing joint penal provisions imposes a fine on the corporation as same as the offender. and this is the most general legislation type. But if the joint penal provisions are unified by the basic type without the immune provision, the party's legal position will be weak, and the corporation will be slightly punished, because the corporation's fine is the same as the offender's. Considering this problem, we should enact that the corporation's punishment don't connect with person's punishment. And it is necessary that the diverse immune provisions should be connected with the joint penal provisions.

개정양벌규정에서의 기업의 형사책임

조병선(Byung-Sun Cho) 한국형사정책학회 2009 刑事政策 Vol.21 No.1

In Korean there is in general the possibilty of corporate criminalliability persuant to ‘joint penal provision (two-sides penal provision)’. Recently in November 2007, the Korean Constiutional Court held that a joint penal provision in which the individual employer is punished when his or her employee is determined to have committed a crime was unconstitutional, because the joint penal provision had no contents for the culpability of an individual employer and thus violated the constitutionally protected principle of culpability. Therefore, it is today impossible to try to explain ‘joint penal provision’ with using the idea of vicarious liability. After the Korean Constitutional Court’s expression of the unconsitutionality over joint penal provision in November 2007, since December 2008 the Ministry of Justice began to change the old joint penal provision into the new revised joint penal provision. On 26 December 2008, the old joint penal provisions of 69 laws were revised. The new revised jointpenal provision adds only an additional sentence: "If a juristic person, an entity or an individual perform due care and supervison over its employee for the prevention of such a crime, it will be exempted from the punishment". The new rivised joint penalprovision seems to declair that the criminal liability of employer is based on the presumption of negligence, because the inserted sentence means the presumption of negligence. Probably the new form of penal provision, that is understood to be a kind of the presumption of negligence, could let the burden of proof be changed from the public prosecutor to the accused, in other words employer-side. My paper raises the question of how we could determine who is perpetrator in an organizational hierachy, and how we should restrict the number of individuals whose actions may trigger the corporation's liability. A dicision of the Korean Supreme Court provides a useful example for such difficulties. The Supreme Court justified the punishment of two-sides with the following explanation: When the actor is a representative, his acts are presumed to be the conducts of a corporation itself and thus a corporation has to be punished. When the actor is not a representative, his conduct cannot be presumed to be the conduct of a corporation. However, when the actor who is not a representative violates a law, he should be still ‘additionally’ punishedbesides a corporation persuant to joint penal provision. Therefore, the punishment of a representative means the ‘expansion’of punishment that is based on the joint penal provision. When the actor is not a representative, the actor is punished because of his own criminal conduct and a corporation is fined because of its negligence of the supervisional duty. At first glance, the argument of the Supreme Court seems to be sufficient for those cases. However, this argument has a premise that it is not difficult to find an actor. The fine against a corporation is usually not sufficient to deter corporate misbehavior. The orientation of this way of thinking lies merely in an individual (natural person) from the naturalistic point of view. Recent Korean courts’ precedents have affirmed the possibility of co-perpertrator based on negligence. The Korean Supreme Court stated in the case of Seongsu Bridge Accident that criminal liability of several perpetrators could be based on joint previous omission of ‘direct and concrete’ due care as long as the casual nexus was given. In this case the Korean Supreme Court accepted the concept of ‘negligent co-perpetrator’, as long as there exist two important premises: the joint previous omission of ‘direct and concrete’ due care and the casual nexus. However, corporate criminal liability pursuant to joint penal provision is quite different from typical criminal negligence. We need to change from a point of individualistic view to a point of collectivistic view. Because a criminal corporate attitude w

환경법에서의 기업책임 -개정된 양벌규정과 질서위반행위규제법에 근거한 새로운 이론구성의 시론

조병선 ( Byung Sun Cho ) 한국환경법학회 2009 環境法 硏究 Vol.31 No.1

In Korean environmental law there is in general the possibilty of corporate criminal liability persuant to `joint penal provision (two-sides penal provision)`. Recently in November 2007, the Korean Constiutional Court held that a joint penal provision in which the individual employer is punished when his or her employee is determined to have committed a crime was unconstitutional, because the joint penal provision had no contents for the culpability of an individual employer and thus violated the constitutionally protected principle of culpability. Therefore, it is today impossible to try to explain `joint penal provision` with using the idea of vicarious liability. After the Korean Constitutional Court`s expression of the unconsitutionality over joint penal provision in November 2007, since December 2008 the Ministry of Justice began to change the old joint penal provision into the new revised joint penal provision. On 26 December 2008, the old joint penal provisions of 69 laws were revised. The new revised jointpenal provision adds only an additional sentence: "If a juristic person, an entity or an individual perform due care and supervison over its employee for the prevention of such a crime, it will be exempted from the punishment". The new rivised joint penalprovision seems to declair that the criminal liability of employer is based on the presumption of negligence, because the inserted sentence means the presumption of negligence. Probably the new form of penal provision, that is understood to be a kind of the presumption of negligence, could let the burden of proof be changed from the public prosecutor to the accused, in other words employer-side. My paper raises the question of how we could determine who is perpetrator in an organizational hierachy, and how we should restrict the number of individuals whose actions may trigger the corporation`s liability. A dicision of the Korean Supreme Court provides a useful example for such difficulties. The Supreme Court justified the punishment of two-sides with the following explanation: When the actor is a representative, his acts are presumed to be the conducts of a corporation itself and thus a corporation has to be punished. When the actor is not a representative, his conduct cannot be presumed to be the conduct of a corporation. However, when the actor who is not a representative violates a law, he should be still `additionally` punishedbesides a corporation persuant to joint penal provision. Therefore, the punishment of a representative means the `expansion` of punishment that is based on the joint penal provision. When the actor is not a representative, the actor is punished because of his own criminal conduct and a corporation is fined because of its negligence of the supervisional duty. At first glance, the argument of the Supreme Court seems to be sufficient for those cases. However, this argument has a premise that it is not difficult to find an actor. The fine against a corporation is usually not sufficient to deter corporate misbehavior. The orientation of this way of thinking lies merely in an individual (natural person) from the naturalistic point of view. Recent Korean courts` precedents have affirmed the possibility of co-perpertrator based on negligence. In 1994, a middle section of Seongsu Bridge fell into the Han River in Seoul during the morning rush-hour, killing 32 people and injuring 17. The bridge was built by Dongah Construction. Investigators found that the company made many omissions in the welding and its construction management and inspection methods were remarkably slipshod. The Korean Supreme Court stated in the case of Seongsu Bridge Accident that criminal liability of several perpetrators could be based on joint previous omission of `direct and concrete` due care as long as the casual nexus was given. Another disaster hit the construction industry less than a year later.Sampoong Department Store in southern Seoul collapsed on June 29, 1995. With 501 killed and 937 injured, it was the worst peacetime disaster in South Korean history. Again, shoddy engineering practices and government corruption were blamed for the accident. In this case the Korean Supreme Court accepted the concept of `negligent co-perpetrator`, as long as there exist two important premises: the joint previous omission of `direct and concrete` due care and the casual nexus. However, corporate criminal liability pursuant to joint penal provision is quite different from typical criminal negligence. We need to change from a point of individualistic view to a point of collectivistic view. Because a criminal corporate attitude would pervade the `team spirit` of the corporation, a general, as well as a specific preventive effect is extremely unlikely if the members of a corporation have been influenced and reflected by a criminal corporation attitude. In my opinion, therefore, a corporation could be held liable for the crime its employee committed because of an organizational failure of the corporation. In order to determine corporate criminal liability, it should not focus on individual behavior but rather on collective mechanisms of control. My explanation on joint penal provisionrequires both the commission of an offense in the interest of the corporation and an organizational failure on the part of the corporation. In my opinion, the new approach I described so far, though not complete, is much more comprehensive than the other approaches that have been developed under the limitation of the classical criminal law theory.

양벌규정과 수범자의 처벌범위에 관한 해석론 - 산업안전보건법상 양벌규정을 중심으로 -

우희숙 경북대학교 법학연구원 2012 법학논고 Vol.0 No.40

2007년 헌법재판소가 보건범죄단속에 관한 특별조치법상 양벌규정에 대하여 책임주의원칙 위반을 근거로 위헌결정을 내린 후, 2011년 (구)산업안전보건법상 양벌규정도 동일한 이유로 위헌결정을 받았다. 이에 현행 산업안전보건법상 양벌규정은 ① 법인의 대표자 및 개인 사업주가 양벌규정상 행위자로 추가되었으며, ② ‘그 행위자를 벌하는 외에’라는 문언을 삽입함으로써 ―대법원 판례 및 다수견해에 의해 인정되는 양벌규정의 이중적 기능에 따라― 실제 행위자를 처벌할 수 있는 근거를 가지게 되었으며, ③ 단서조항을 삽입함으로써 법인의 형사책임에 대한 근거를 마련하게 되었다. 그러나 ②와 관련하여 양벌규정의 이중적 기능을 인정함으로써 유추금지원칙 및 책임주의원칙에 위반될 수 있으며, ①과 관련하여 사업주가 법인인 경우와 개인인 경우를 구분하지 않고 동일하게 벌금형의 대상으로 함으로써 형벌적용의 불균형 문제가 발생할 수 있다. 먼저 ②의 문제를 살펴보면, 산업안전보건법은 벌칙조항의 적용대상이 되는 의무위반의 주체를 사업주(ⓐ), 대통령령 또는 고용노동부령으로 정하는 자(ⓑ), 해당 건축물이나 설비의 소유주 등(ⓒ), 누구든지(ⓓ), 철거하거나 해체하는 자(ⓔ), 사업을 타인에게 도급하는 자(ⓕ)라고 규정함으로써 ⓓ의 유형을 제외하고는 진정신분범의 형식을 갖추고 있다. 이때 양벌규정상 법인의 대표자, 법인 또는 개인의 종업원 등이 산업안전보건법상 위반행위를 할지라도 벌칙조항을 근거로 처벌할 수 없다. 이에 대법원 판례 및 다수견해는 양벌규정의 이중적 기능을 인정하여 실제 행위자인 종업원 등을 벌칙조항을 근거로 처벌해야 처벌의 공백을 메울 수 있다고 한다. 그러나 양벌규정의 이중적 기능을 인정하지 않아도 형법 제33조 본문에 의해 신분이 없는 종업원 등도 공범 및 정범으로 처벌할 수 있기 때문에 처벌의 공백이 발생할 가능성은 거의 없다. 그리고 ①의 문제를 살펴보면 사업주가 법인인 경우에는 양벌규정에 의한 벌금형 부과만이 가능하지만 개인인 경우에는 벌칙규정(고의범)에 의한 징역형 또는 벌금형, 양벌규정(과실범)에 의한 벌금형 부과가 가능하기 때문에 형벌적용에 있어 불균형 문제가 발생할 수 있다. 또한 개인 사업주가 벌금형을 부과받은 경우에는 법인 사업주와는 달리 노역장 유치가 가능하기 때문에 이 또한 문제가 된다. 그러므로 사업주가 법인인 경우와 개인인 경우를 구별하여 형벌적용의 형평성을 기하여야 할 것이며, 개인 사업주에게 벌금형을 부과할 지라도 노역장 유치는 제외되어야 할 것이다. In 2007, the Constitutional Court ruled that the Joint Penal Provision of the Act on Special Measures for the Control of Health and Welfare Offenses was against for the principle of liability, so it is unconstitutional. After that, in 2011, the Constitutional Court also ruled that the Health and Safety at Work Act was unconstitutional by the same token. As a result, the Joint Penal Provision of the Act in force adds the representative director and personal business owner as a offender(①). And the Act adds the word ‘that outside of the offender will be punished’(②), the exemption provision in provisory clause (③). In this connection, the secondary issue may be unconstitutional because it is against for the principle of liability and the non-anological interpretation principle. Then the first issue may be an imbalance problem of punishment imposed by apply the monetary penalty pari passu to both corporation and personal business owner. First, looking into the secondary problem, the Act is provided that offenders is Sonderdelikt for business owner, anyone and much more. At this point, even if the representative director and personal business listed in the Joint Penal Provision breached the Act, they are unpunished based upon penal provisions. The Supreme Court's precedents and majority opinions argued that actual offender's punishment should be based on penal provisions by recognizing a dual function of the Joint Penal Provision. But the actual offender is punishable by article 33 of the Criminal Code. Therefore, there is little chance that it can be done with impunity. Secondly, if the business owner is a corporation, the owner is liable to fines of up to fifty million won by the Joint Penal Provision. But if the owner is a personal business, it is sentence to five year's imprisonment by the penal provisions. Of course, it is impossible for the owner to impose a fine. Meanwhile, it is possible for owner to detention in a work place, if the owner got a fine. For that reason, it needs to distinguish between corporation and personal business owner to consider fairness. It also should be excluded for the owner to imprisonment in a workhouse.

저작권법상 양벌규정의 해석과 적용에 관한 연구

강기봉(Kang, Gi-Bong) 한양법학회 2021 漢陽法學 Vol.32 No.4

The Copyright Act provides for the joint penal provisions in Article 141. As a result, the legal person or the individual employers may be fined for violating the rights under Copyright Act by their representatives or employees. In relation to the joint penal provisions, there was controversy over whether the legal person could be subject to criminal responsibility and on what legal bass fines under the joint penal provisions could be imposed. Following the unconstitutional decision on the joint penal provisions of the Constitutional Court, the act was amended to impose conditions on the obligations of the owner to pay careful attention to employees in order to punish. And, as a requirement for the application of Article 141, it is necessary to review the subject of punishment, the personal scope of the employees, the scope of their work on the premise that their actions are related to the business of a corporation or individual employers in addition to these personal scopes, the scope of infringement to which the joint penal provisions apply, and the duty of business owners. In addition, in relation to the independence and level of punishment for business owners, it is also necessary to examine a possibility of independent punishment for business owners, whether a separate complaint for business owners is required, whether business owners can exercise the right to indemnity for the employee, whether the level of corporate punishment should be raised, and the impact relationship related to reinforcement of civil remedies. So, in this paper, we reviewed the legislative background of the joint penal provisions and the proviso provisions in Article 141, examined the application requirements of the proviso provisions in detail, and then looked at the independence and level of punishment for business owners under the proviso provisions.

法人에 대한 兩罰規定의 違憲 與否 (대상결정: 헌재 2009. 7. 30. 선고 2008헌가14 결정)

하명호 한국행정판례연구회 2009 행정판례연구 Vol.14 No.2

Under the system of Korean criminal law, a legal person is not generally punished and may be punished only when there is a provision that specifically and explicitly provides for the punishment of legal persons, such as joint penal provision. Joint penal provision generally provides that a natural person or a legal person shall be punished when an employee, etc. commits a crime “in relation to the business or property of such a natural or legal person.” The employer’s vicarious criminal liability under the joint penal clause is very often strict liability, in which the person is held liable for the acts or omission of another without any element of his own culpability. The Consitutional Court, in Decision 2005 Hun-Ka 10 pronounced on 29. 11. 2007, found a joint penal provision concerning natural person unconstitutional for its lack of clear requirement of culpability. Then, in Decision 2008 Hun-Ka 14 pronounced on 30, 7, 2009, it also found unconstitutional the joint penal provision for legal person on the similar basis. The purpose of this paper is to critically analyze the legal reasoning of the latter decision. First, the Consitutional Court found that the joint penal provision for legal person violated the rule of law and the principle of “nulla poena sine lege(no penalty without a law)” while it reasoned in the prior decision concerning natural person that the joint penal provision violated the Article 10, which provides for human dignity and right to pursue happiness. But under the present system of Korean criminal law which generally denies criminal liability of legal person, the vicarious criminal liability of legal person is a matter of statutory policies subject to Congres’s legislative power, not a matter subject constitutional scrutiny. Neither the rule of law and the principle of “no penalty without a law” can be valid constitutional basis for the decision without reference to the Article 10. Second, the Constitutional Court rejected as impermissible interpretation (not within the possible meaning of the text) the Supreme Court’s present reading of the joint penal clause as it required “he employer’s(natural or legal person) negligence in employment(hiring or supervision)” in spite of lack of clear requirement. Considering that the original purpose of the textual approach to the criminal law provisions was to apply criminal law strictly, however, the Supreme Court’s unavoidable interpretation adopted to restrict the strict criminal liability of legal person should be permitted as constitutional interpretation. 헌법재판소는 자연인의 형벌에 관한 책임주의를 헌법상 법치국가의 원리에 내재하는 원리인 동시에 국민 누구나 인간으로서의 존엄과 가치를 가지고 스스로의 책임에 따라 자신의 행동을 결정할 것을 보장하고 있는 헌법 제10조의 취지로부터 도출되는 원리라고 선언하였다. 반면에 대상결정(헌재 2009. 7. 30. 선고 2008헌가14 결정)에서는 법인의 형벌에 관한 책임주의를 법치주의 및 죄형법정주의에서 도출되는 것이라고 하고 있다. 그러나 법인의 형사책임은 형사정책의 산물이고 자연인의 그것과는 차원을 달리하는 것이므로, 자연인에 대한 책임의 원칙이 헌법으로부터 도출된다고 해서 당연히 법인에 대해서도 헌법적으로 그 원칙이 도출되는 것은 아니라고 생각한다. 죄형법정주의는 범행 이전에 미리 성문화된 명확한 법률에 의해 처벌하여야 한다는 원칙을 의미할 뿐 여기에서 책임의 원칙이 도출되지는 않는다. 또한 법치주의를 실질적으로 파악하더라도 인간의 존엄성을 선언한 헌법 제10조와 결합하지 않고 단지 실질적 법치주의의 관념만으로 책임의 원칙이 도출된다고 볼 수 있는지도 의문이고, 설령 그렇다고 하더라도 그것만으로는 책임의 원칙에 대한 구체적인 내용이 무엇인지 전혀 확정할 수 없으므로 그 연관성은 매우 미약할 것이라고 생각한다. 다음으로 헌법재판소는 대상결정에서 대법원이 양벌규정을 해석함에 있어서 문언상 명백한 의미와 달리 “종업원의 범죄행위에 대해 영업주의 선임감독상의 과실이 인정되는 경우”라는 요건을 추가하여 해석하고 있는 것은 ‘문언상 가능한 범위를 넘어서는 해석’으로서 합헌적 법률해석의 한계를 일탈하여 허용될 수 없다고 판시하였다. 그러나 형법해석에서 ‘문언의 가능한 범위 내’라는 법률해석의 한계를 설정한 이유는 그것이 법관의 자의로부터 개인의 자유와 안전을 확보하기 위한 법치국가적 보장책으로 기능하기 때문이다. 그런데 대법원은 합헌적 법률해석을 통해 법인의 가벌성을 확대하는 것이 아니라 축소하여 법치국가적 요청을 실현하고 있으므로 설령 문언의 가능한 범위를 넘어선 것이라고 하더라도 허용될 수 없는 것이라고 보기는 어렵다. 또한 불법유형으로서 빼놓을 수 없는 요소인데 입법의 미비로 기술되지 않은 것도 처벌의 범위를 확대하는 것이 아니라 축소하는 것이라면 가능하므로, “종업원의 범죄행위에 대해 영업주의 선임감독상의 과실이 인정되는 경우”라는 요건이 법인의 ‘업무’와 종업원의 ‘위반행위’를 연결해 주는 주관적 구성요건 요소로서 문언상 명시되지 않더라도 해석으로 도출될 수 있는 것이라고 생각한다.

의료법 등의 양벌규정과 책임원칙

황만성 대한의료법학회 2010 의료법학 Vol.11 No.2

In November 2007, the Korean Constiutional Court held that a joint penal provision in which the individual employer is punished when his or her employee is determined to have committed a crime was unconstitutional, because the joint penal provision had no contents for the culpability of an individual employer and thus violated the constitutionally protected principle of culpability. After the Korean Constitutional Court’s judgment, since December 2008 the Ministry of Justice began to change the old joint penal provision into the new revised joint penal provision. On January 2010, the old joint penal provisions of 110 laws were revised. The new revised joint penal provision adds only an additional sentence: “If a juristic person, an entity or an individual perform due care and supervision over its employee for the prevention of such a crime, it will be exempted from the punishment”. But an presumption of negligence clause that is added in the new revised joint penal provision is still vacuum in concerned with supervision responsibility. Probably the new form of penal provision, that is understood to be a kind of the presumption of negligence, could let the burden of proof be changed from the public prosecutor to the accused, in other words employer-side. Especially, when joint penal provision is applied to hospital as administrative punishment, according to the hospital is a (juridical) foundation or not, the application of the joint penal provision is different and unfaithful. In my opinion, therefore, a corporation liability could be considered according to various liability of employee's business and the crime its employee committed because of an organizational failure of the corporation.

형법에서의 행위자의 특정: 개인책임과 단체책임

조병선 ( Byung Sun Cho ) 서울대학교 법학연구소 2009 서울대학교 法學 Vol.50 No.2

So far the term `collective guilt` has been not well developed in the area of criminal law. However, the necessity to build the firm conception of collective guilt has been growing. Recently Professor Fletcher has developed the new concept of collective guilt. The first step in Fletcher`s argument is to reveal what he perceives as the shortcomings of a liberal tradition embraced by most criminal law theorists. Finally he has developed a concept of the nation as a collective agent and as a potential bearer of guilt. The author tried to apply some implications of Fletcher`s approach to the corporate criminal liability in Korea. In Korean there is in general the possibilty of corporate criminal liability persuant to `joint penal provision (two-sides penal provision)`. Recently in November 2007, the Korean Constitutional Court held that a joint penal provision in which the individual employer is punished when his or her employee is determined to have committed a crime was unconstitutional, because the joint penal provision had no contents for the culpability of an individual employer and thus violated the constitutionally protected principle of culpability. After the Korean Constitutional Court`s expression of the unconsitutionality over joint penal provision in November 2007, since December 2008 the Ministry of Justice began to change the old joint penal provision into the new revised joint penal provision. On 26 December 2008, the old joint penal provisions of 69 laws were revised. The new revised joint penal provision adds only an additional sentence: If a juristic person, an entity or an individual perform due care and supervison over its employee for the prevention of such a crime, it will be exempted from the punishment. The new rivised joint penalprovision seems to declair that the criminal liability of employer is based on the presumption of negligence, because the inserted sentence means the presumption of negligence. Probably the new form of penal provision, that is understood to be a kind of the presumption of negligence, could let the burden of proof be changed from the public prosecutor to the accused, in other words employer-side. My paper raises the question of how we could determine who is perpetrator in an organizational hierachy, and how we should restrict the number of individuals whose actions may trigger the corporation`s liability. In my opinion, corporate criminal liability pursuant to joint penal provision is quite different from typical criminal negligence. We need to change from a point of individualistic view to a point of collectivistic view. Because a criminal corporate attitude would pervade the `team spirit` of the corporation, a general, as well as a specific preventive effect is extremely unlikely if the members of a corporation have been influenced and reflected by a criminal corporation attitude. In my opinion, therefore, a corporation could be held liable for the crime its employee committed because of an organizational failure of the corporation. In order to determine corporate criminal liability, it should not focus on individual behavior but rather on collective mechanisms of control. My explanation on joint penal provisionrequires both the commission of an offense in the interest of the corporation and an organizational failure on the part of the corporation. In my opinion, the new approach I described so far, though not complete, is much more comprehensive than the other approaches that have been developed under the limitation of the classical criminal law theory.