미국에서의 법인에 대한 형사책임귀속 모델과 그 시사점 = The Model on the Corporate Criminal Liability in the United States and Its Implications for Korea

다국어 초록 (Multilingual Abstract)

This Article examines corporate criminal liability in the United States. Under the common law, corporations could not commit crimes. Since the U.S. Supreme Court``s New York Central decision, however, it has been recognized that corporations may be held liable even for crimes requiring criminal intent. There have been two corporate criminal liability standards under which corporations may be held criminally liable for the actions of their officers, agents, or employees: the doctrine of respondent superior and the Model Penal Code standard. First of all, under the doctrine of respondent superior, a corporation may be held liable for the crime of its officer, agent, or employee provided that the officer, agent, or employee acted within the scope of his or her employment and acted with the intent to benefit the corporation. Here, the agents and the employees for whose conduct the corporation may be held criminally liable are not limited to high-level agents or employees. Additionally, it is irrelevant whether the corporation has designed and implemented compliance policies in determining corporate criminal liability. Secondly, the Model Penal Code standard treats corporate criminal liability differently based on whether the offense is defined by the Criminal Code or not. According to the Model Penal Code §2.07(1)(a), a corporation may be held criminally liable for a regulatory offense that is defined by a statute other than the Criminal Code only when legislative purposes to impose criminal liability on corporations plainly appears in the statute, and its officer, agent, or employee committed the offense on behalf of the corporation within the scope of his or her employment. The Model Penal Code §2.07(5), however, allows a due diligence defense against corporate criminal liability for regulatory offenses. When it comes to crimes defined by the Criminal Code, the Model Penal Code §2.07(1)(c) provides that a corporation may be held criminally responsible only when its board of directors or high managerial agent got involved in such crimes in the form of authorization, request, command, performance, or tolerance. These two standards, however, have not been free from criticism. Especially, the doctrine of respondeat superior has been criticized in that it does not consider whether a corporation has designed and implemented effective compliance policies when determining the criminal liability of such corporation. It could be problematic with regard to deterrence that is a central justification for criminal liability in general. As a result, many legal scholars and practitioners have argued that corporate criminal jurisprudence should be improved, and thereby the existence of corporate compliance policies should be considered in determining corporate criminal liability.

참고문헌 (Reference)

1 이재상, "형법총론" 박영사 2011

2 장한철, "조세포탈죄의 성립문제에 관한 일고찰" 한국법정책학회 (1(5)) : 235-254, 2005

3 점승헌, "조세범죄에 대한 조세형법 적용상의 문제점" 한국법학회 (19) : 253-276, 2005

4 이주희, "양벌규정의 개선입법에 관한 고찰" 한양법학회 (28) : 99-120, 2009

5 최대호, "법인처벌의 판단기준으로서 법준수프로그램에 관한 연구" 중앙대학교 대학원 2010

6 지유미, "법인의 형사책임에 관한 미국법제의 검토" 법학연구소 37 (37): 213-247, 2013

7 한성훈, "기업활동에 대한 고유의 처벌근거" 법학연구소 19 (19): 255-287, 2011

8 이진국, "기업범죄의 예방수단으로서 준법감시제도(Compliance)의 형법적 함의" 한국형사정책연구원 21 (21): 65-89, 2010

9 United States, "Willi Beusch and Deak & Company of California, Inc., 596 F. 2d 871 (9th Cir. 1979)"

10 Larry May, "Vicarious Agency and Corporate Responsibility" 43 : 69-78, 1983

11 Southern Express Co, "State, 1 Ga. App.700, 58 S.E. 67"

12 Antony Ragozino, "Replacing the Collective knowledge Doctrine with a Better Theory for Establishing Corporate Mens Rea : The Duty Stratification Approach" 24 : 423-429, 1995

13 Brent Fisse, "Reconstructing Corporate Criminal Law : Deterrence, Retribution, Fault, and Sanction" 56 : 1141-1201, 1983

14 Commonwealth, "Proprietors of New Bedford Bridge" 68 : 339-, 1854

15 Andrew Ashworth, "Principles of Criminal Law" 1999

16 Steven M. Morgan, "Perils of the profession: Responsible corporate Officer Doctrine May Facilitate a Dramatic Increase in criminal Prosecutions of Environmental Offenders" 45 : 1199-1215, 1991

17 State, "Morris and Essex Railroad Co" 23 : 360-, 1852

18 People, "John H. Woodbury Dermatological Inst., 192 N.Y. 454, 85 N.E. 697"

19 Michael E. Tiger, "It Does the Crime But Not the Time; Corporate Criminal Liability in Federal Law" 17 : 211-229, 1990

20 V.S. Khanna, "Is the Notion of Corporate Fault a Faulty Notion? : The Case of Corporate Mens Rea" 79 : 355-362, 1999

21 State, "First Nat'l Bank, 2 S.D.568, 51 N.W. 587"

22 John C. Coffe, Jr, "ENCYCLOPEDIA OF CRIME AND JUSTICE 255" 1983

23 Janis M. Berry, "Defense of Business, Individual Officers and Employees in Corporate Criminal Investigations" PUB. CONTRACT L. J 648-657, 1990

24 Eliezer Lederman, "Criminal Law, Perpetrator and Corporation : Rethinking a Complex Triangle" 76 : 285-290, 1985

25 People, "Corporation of Albany" 11 : 539-, 1834

26 Pamela A. Bucy, "Corporate Ethos: A Standard for Imposing corporate Criminal Liability" 75 : 1095-1162, 1991

27 V. S. Khanna, "Corporate Criminal Liability: What Purpose Does It Serve?" 109 : 1477-1534, 1996

28 Ann Foerschler, "Corporate Criminal Intent: Toward a Better Understanding of Corporate Misconduct" 78 : 1287-1289, 1990

29 Kathleen F. Bricky, "Corporate Criminal Accountability : A Brief History and an Observation" 60 : 393-406, 1982

30 Developments in the Law, "Corporate Crime: Regulating Corporate Behavior through Criminal Sanctions" 92 : 1227-1249, 1979

31 Rechard S. Gruner, "Corporate Crime and Sentencing" 1994

32 Rechard S. Gruner, "Corporate Crime and Sentencing" 1994

33 Daniel R. Fischel, "Corporate Crime" 25 : 319-322, 1996

34 Charles J. Walsh, "Corporate Compliance Programs as a Defense to Criminal Liability : Can a Corporation Save Its Soul?" 47 : 605-666, 1995

35 William S. Laufer, "Corporate Bodies and Guilty Minds" 43 : 647-,

36 Robert E. Bloch, "Compliance Programs and Criminal Antitrust Litigation : A Prosecutor's Perspective" 57 : 223-223, 1988

37 Telegram Newspaper Co, "Commonwealth, 172 Mass, 294, 52 N.E. 445"

38 Peter French, "Collective and Corporate Responsibility" 31-47, 1984

39 United States, "Beusch 596 F. 2d 878 (9th Cir. 1979)"

40 United States, "Basic Construction Co. 711 F. 2d 570 (4th Cir. 1983)"

41 United States, "American Stevedores, Inc., 310 F. 2d 47, 48 (2d Cir. 1962)"

42 Richard J. Favretto, "A Prosecutor's Perspective on the Gypsum Opinion" 49 : 1127-1131, 1980