기업의 형사책임에 대한 논의- 독점규제 및 공정거래에 관한 법률을 중심으로 -

Practical and academic scholars have insisted that corporate criminal liability should be admitted in that it is necessary and valid in terms of legal theory as well legal policy. Corporate’s influence on a society has increased by creating or accomplishing risk which were not under control of the individual. Corporate’s decision is the output from internal procedures and systems, not from specific persons. Therefore, we should acknowledge that corporate criminal liability is formed by independent criminal liability doctrine, not dependent from a specific person who commits a criminal violation. The mes rea of corporate also should be inferred from corporate itself, not from individuals. New wave of corporate criminal liability in theory and case law can be sumarized as follows: reasonable corporation, the proceduralization of mens rea, the expansion of the range of mens rea. However, It is concerned with unreasonable extension of corporate criminal liability if proceduralization of mens rea is transformed into perfunctory of mens rea or the range of mens rea is excessively expanded. Therefore, we should establish mens rea standard with more clearity and coherence.