집단인식의 법리와 의도적 인식회피 － 결합론에 대한 비판과 조직모델적 대안의 검토 －

The problem of how to assign mens rea to a corporation in a criminal prosecution has been a troubling one for courts and commentators alike. After the decision in United States v. Bank of New England, N.A., most commentators thought that new method of easily imputing criminal intent to a corporation had arisen. This is the collective knowledge doctrine. Under this doctrine, courts supposedly may collect the knowledge possessed separately by different employees within a corporation so as to create the requisite guilty corporate state of mind, even if there is no single employees entirely at fault. However, some commentators argue that Bank of New England has been misread, because it allowed collectivized employee knowledge on in the face of culpable corporate conduct, namely the corporation's willful blindness to factual information and legal requirements. They tried to demonstrate that the willful blindness prerequisite for knowledge aggregation is a powerful for explaining every other leading cases included within the collective knowledge doctrine. Also they argue, to aggregate corporate knowledge without the presence of willful blindness would violate the Constitution, and conclude that the collective knowledge doctrine is not an independent method for establishing corporate mens rea, but rather exists as a logical corollary to the much more common method of establishing scienter through willful blindness. This paper examines these argument critically and in the end concludes that firstly, in the view of organizational model, the leading cases need not be interpreted to require willful blindness, because they could be understood as reflecting the organizational model and secondly the doctrine could be regarded as independent method for establishing corporate intent, and finally the doctrine without the presence of willful blindness does not violate the Constitution.