양벌규정에서 법인과 행위자의법정형 분리의 필요성

초록

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.

키워드