S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 48, Number 1/4 (2007)
법인의 형사책임과 양벌규정의 법적 성격
Legal Nature of the Provisions to Punish Corporations: A Defense for the Theory of "Liability with Fault"
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.48 No.3, pp. 60-76
- 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
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...