SHERP

법인의 형사책임과 양벌규정의 법적 성격
Legal Nature of the Provisions to Punish Corporations: A Defense for the Theory of "Liability with Fault"

Cited 0 time in webofscience Cited 0 time in scopus
Authors
조국
Issue Date
2007
Publisher
서울대학교 법학연구소
Citation
법학, Vol.48 No3 pp.60-76
Keywords
양벌규정법인의 형사책임법인범죄corporate crimecorporate responsibilitycorporate Liability
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...
ISSN
1598-222X
Language
Korean
URI
http://lawi.snu.ac.kr/

http://hdl.handle.net/10371/10164
Files in This Item:
Appears in Collections:
College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 48, Number 1/4 (2007)
  • mendeley

Items in S-Space are protected by copyright, with all rights reserved, unless otherwise indicated.

Browse