법익적대적 법인문화, 위험관리 실패와 법인의 형사책임

To determine when a corporation should be criminally liable, commonwealth jurisprudence has employed two major standards, namely "vicarious liability" and "identification principle" which locate its criminal liability derivatively through the culpability of individual actors. But since the 1990s, some countries have enacted legislations which make a corporation criminally responsible on the basis of management failure or corporate culture. In such statutes a corporation can be prosecuted and convicted if its management failure directed, encouraged, tolerated or led to an offence or a corporate culture existed in the corporation that encouraged, tolerated or led to that management failure, without asking if a director or officer be convicted of an offence. According to the corporate culture model, a corporation can be prosecuted if an offence is occurred due to the failure in its safety system, or if there isn't any safety system established in the corporation at all. It should be also examined weather the goal set by a corporation encourages, or discourages, illegal activity by corporate employees. If top management places the utmost priority on maximizing the value of a corporation and doesn't take safety seriously, these factors are weighed in favor of finding a corporation criminally liable. It is still disputed if a corporation can be held criminal responsible when corporate culture that encourages or tolerates an offense is shared only in its subdivisions. Corporate Manslaughter and Corporate Homicide Act 2007 in the U.K. focuses on management failures at a senior level, whereas the Australian Criminal Code Act 1995 declares that corporate culture only found in the part of the body corporate in which the relevant activities takes place should be also attributed to a body corporate. Accepting that a corporation should be responsible for controlling, reducing, or eliminating all sorts of risk it creates, it's not important to examine if a corporate culture which led to an offense existed in a corporation generally or just in part of it. The punishment of a corporation cannot be justified with the traditional retributive model of criminal liability which links sanctions to the blameworthiness of an individual, because a corporation lacks the capacity to be morally blameworthy. From the point of view of a corporate culture model, the role of corporate criminal liability should be understood from the perspective of rehabilitation and deterrence rather than retribution. The corporate culture model of a corporate criminal liability would require that an attitude, policy, rule, practice etc. within a corporation that led to an offense be changed and a corporation develop an appropriate and functional safety culture. The problem is that traditional sanctions such as fines and incarceration are not adequate to protect legal interest (Rechtsgut) from corporate offense. Incarcerating a corporation is unimaginable, and it is well known that fines does not work properly for a corporation. Sanctions like fines and incarceration could deter individuals from illegal behavior, but it is unclear that the imposition of such sanctions would effectively force corporations to develop a proper safety culture. Also, we need a new sentencing option to ensure a convicted corporation to take steps toward a safety-oriented culture.