RISS 검색 - 국내학술지논문 상세보기

다국어 초록 (Multilingual Abstract)

Each State Party undertakes to impose penal sanctions on persons who participate in illegal acts committed by or on behalf of corporate entities. Whether corporate entities can be penalized, civilly or criminally, varies among nations. In some nations, corporate entities can be penalized for engaging in environmental crimes. This raises an issue of whether a corporation may be penalized for the activities of its personnel or agents, despite the absence of an overt act on the corporation's behalf. At minimum in nearly all nations, the director, officer, or agent's actions must be within the scope of their employment. Furthermore, there usually must be evidence that the unlawful activities were directed by or with the consent of a senior corporate official and that the direction or consent was given within the scope of that official's authority. Here, the criminal liability of enterprises will be discussed firstly in connection with the criminal liability of individual officers or employees, and secondly in the context of the enterprise as such.
1. Activities in corporate bodies are typically the result of many interlocked decisions, with a tendency for wide delegation of responsibilities. As a result, where there is "organizational wrongdoing" a criminal system based upon personal fault has difficulties identifying and successfully prosecuting the individual person's responsible. This can lead to an "organized irresponsibility"of individual employees. Therefore, as to perpetrators, both statutory and case law are in the process of extending individual criminal liability especially in the area of entrepreneurial activity. What is the theoretical basis of the criminal liability of corporate officers who in fact are regarded as "responsible persons"? In this case, the vicarious criminal liability of a director, a representative and a manager is avoided because the doctrine of a criminal responsibility is increasingly emphasized. They are to be punished, only when they themselves commit an alleged crime.
In general, there are now three approaches: (a) The basis of liability of corporate officers may be a corporate criminal act by them within their knowledge and control even if the individual has not performed the unlawful act, at least when such individual ordered or authorized the activity. (b) A broader basis of liability may apply to situations where the corporate officer knows of a subordinate's unlawful activity and does nothing to prevent it. If the corporate officer stands in a position of responsibility over the act in question, liability may be predicated on the failure of the corporate officer to adequately supervise subordinates. (c) A still broader basis of liability is similar to strict liability: the corporate officer may be liable even without evidence of the officer's direct participation or acquiescence in a subordinate's unlawful behavior if the corporate officer holds a responsible position. Only an officer who exercises a high degree of care in attempting to prevent the illegal activity will avoid liability. Approach (a) can be reached by the traditional criminal theory of alders and abettors, but approach (b) or (c) is beyond the reach of this traditional theory. The international trend is to reduce the requirements for intentional behavior when dealing with industrial perpetrators, to create a presumption of intent or to change the burden of proof (approach (b) or (c)).
Faced with the above-mentioned difficulties as "organizational wrong-doing" or "organized irresponsibility", it is not surprising that, in many countries, adherence to the traditional principle that criminal liability requires personal fault (approach (a)) is being sacrificed in an effort to secure greater environmental protection.
2. When a corporate behavior has been determined to constitute a crime, it is possible to punish not only an individual perpetrator but also an enterprise itself. Several ways of punishing the enterprise itself exist. In the United States, for example, sanctions include putting the corporation in the custody of a U.S. Marshall, requiring reforms of operations, forcing community service by the corporation and/or individuals, fining, imposing substantial restitution, and providing notice to victims. Punishments can be cumulative. In the case of fining, the estimation of the illegal gains is not admitted generally, but in some countries there are special regulations where such estimation is deemed necessary. For example, in the case of surcharge in the Japanese Antimonopoly Act, the law can deprive illegal gains through imposing a certain rate of the turn over of the enterprise with a clear numerical formula.If national law does not permit corporate culpability,then the implementing legislation should reflect that limitation. However, worldwide there is a tendency to attribute responsibility on an impersonal basis. Even in states that have traditionally adhered to the principle of societas delinquere non potest (enterprises cannot be criminal) Other countries adhere formally to the principle that an enterprise cannot be criminal, but there is a growing tendency toward imposing criminal liability on enterprises.they have looked for ways to impose non-criminal sanctions on those enterprises.
3. However, in countries like Korea or Japan, the difficulty is not in imposing criminal penalties against the enterprise itself, but rather, in the determination of personal fault. For example, the Korean legislature provides as does the Japanese that a corporate entity is imputed liability if its representative or agent commits a crime under its implementing legislation. According to this provision, however, one should prove who in fact violated the alleged regulation, because that provision requires only that an individual perpetrator acted illegally. Therefore, to prove the illegal conduct of an individual perpetrator is a necessary condition to punish an enterprise. It often happens that the individual perpetrator is difficult to find, especially in the case where the enterprise is a large organization. After the individual perpetrator has been found, it needs to be proved that the conduct of the enterprise is somehow negligent. That is: the enterprise did not meet the duty of care to keep the employee from committing a crime. This omission constitutes a crime of the enterprise. In order to solve this difficulty of evidence, the Korean judiciary has adopted the co-called theory of fault-presumption that allows for finding that a supervisorial duty has been violated within a certain circle of persons. This idea reflects the present difficulty of punishing a large and complicated organization, but has met strong criticism because of the doctrine of guilt ("Schuldprinzip") recognized by the Korean Constitution. As Heine offers, "guilt", as the specific responsibility of the enterprise, should be understood in the sense that the material disposition of the firm prevented it from making legal coordination and reorganization decisions and allowed defective risk management with serious socially detrimental effects to prevail. Faulty decisions over time replace individual guilt.

번역하기