지방자치단체에 대한 양벌규정의 적용 가능성: 미국법과의 비교를 중심으로

As you may already know, there are some arguments about whether a state may inflict criminal punishment on corporations. Until now, most Korean criminal law scholars deny the criminal responsibility of corporation because of lacking personality. However, the Supreme Court of Korea recently decided that the local self-governments managing business on behalf of the national government are legally regarded as a kind of subdivisions of the national government, but when they handle their own business they are also legally viewed as autonomous corporations separated from the national government. In the U.S., until 1975, American local governments were subject to criminal prosecution under state law. By making local governments liable for criminal prosecution brought by the state government, it was possible to deter local governments from wrongdoing. And the criminal liability usually hinged on a determination of whether a local government was acting in a governmental, rather than proprietary or discretionary as opposed to ministerial, capacity. However, as the legal status of a local government was changed into a mere subdivision of the state subject to almost complete state regulation, local governments are not subject to criminal punishment. On the other hand, at federal level, some federal criminal statute can be construed to apply to local governments. It is undeniable that local self-governments are subject to criminal sanction because not only they are defined as corporations by the Local Autonomy Act but also have public duties. With the interpretation of the legal provisions to punish corporations, it seems reasonable that there is no special grounds to exclude local self-governments from applying the provisions, and making local governments criminally liable for their wrongdoing is also possible even if they are the subject of criminal sanction in general.