기업범죄 예방을 위한 우리나라와 미국의 준법감시인제도 비교

While the doctrine of corporate criminal liability has been highly controversial for decades, the general rule today is that the corporation may be criminally liable for the conduct of its supervisory employees who have either intentionally disregarded the law or have acted with plain indifference to its requirements. Corporate criminal liability has become a necessary part of the law in most of the modern western countries. In the United States, the charging and sentencing system gives corporations a strong incentive to install effective monitoring systems to forestall and detect criminal wrongdoing among those within the corporation. It also gives corporations a strong incentive to cooperate with prosecutors. Prosecutors are told to consider whether or not a corporation has an effective compliance program when deciding to prosecute a corporation, and not simply its agents. Firms can adopt various measures and implement internal controls to prevent their agents from wrongdoing, and if they detect wrongdoing, they can discipline the wrongdoers or report them to the authorities. The Sentencing Reform Act of 1984, and the federal sentencing guidelines for organizations both encourage corporations to install compliance programs. The problem of corporate crimes has received considerable attention in the criminal-law literature in Korea. For example, commentators have discussed the need for more effective criminal sanctions, as well as the need for all corporations to adopt compliance programs. American-style compliance programs were adopted to financial corporations such as banks or stock companies in 2000 after the big national financial crisis in Korea in 1997. However, each corporation determines the specific contours of its program and these programs differ considerably from American ones. It is desirable that compliance programs be extended to all corporations in Korea, and that those programs be modeled more along American lines. For better compliance programs to prevent and detect criminal conduct in Korea, having a reasonably designed effective compliance program should be a significant incentive for the company to avoid criminal sanctions and economic loss. Also, specific high-level individual(s) should be delegated the obligation to report periodically to the company's governing authority, and they must also be given adequate resources, appropriate authority, and direct access to the governing authority. Besides, mechanisms that allow for anonymity or confidentiality should be established, whereby the company's employees and agents may report or seek guidance regarding potential or actual criminal conduct without fear of retaliation. Lastly, the compliance program should be promoted and enforced consistently through appropriate incentive to perform including making any necessary modification to it.