기업범죄 영역에 대한 조직지배설의 적용가능성- 독일의 연방대법원 판례와 학계의 논의를 중심으로 -

A theory of organizational governance has been developed based on the principle of punishing the leaders of illegal organizations such as the mafia. The fields of application have been expanded to economic enterprises in today’s risk society. In other words, the theory attempts to force management, for example the leaders of illegal organizations, to take primary responsibility for corporate crime as the “perpetrators behind a direct perpetrator.” The theory shifted from the existing application of criminal law, under which a direct perpetrator—an employee—was primarily punished while management took secondary responsibility for the crime. Germany’s precedent affirms the application of organizational governance theory to economic enterprises. However, an absolute majority of the academic community questions the general applicability of the theory, because economic enterprises do not have command-obedience relations, which are a prerequisite for the theoretical structure of “a perpetrator behind a perpetrator (Täter hinter dem Täter)” and organizational illegality, which is based on the assumption of the theory. However, despite such oppositions, the reality is that a fundamental punishment principle is needed for enterprise executives who are able to create serious risks in modern society. This reality positions the theory of organizational governance as a strong alternative. With regard to this dilemma, Schünemann presents an alternative under which the basic principle of organizational governance theory is applied to corporate crime, rather than organizational governance theory itself. According to Schünemann, the fundamental principle of organizational governance theory, namely that a person in control of the organization becomes a perpetrator, can be applied to economic enterprises, although it is difficult to apply the original theory of organizational governance to economic enterprises, because it was developed on the basis of “proactive action” conducted by leaders “within illegal organizations.” Crimes in legal economic enterprises occur through intended or unintended broad omission by an organization’s owners or management. Thus, based on a position within an enterprise and through organizational governance theory, it is more appropriate to charge executives as guarantors for omission rather than indirect perpetrators. Similar to the fact that being in control of subordinates can be a basis for identifying an illegal organization’s leaders as indirect perpetrators, being in practical control of the acts of employees can be a basis for identifying enterprise owners as guarantors responsible for omission. Schünemann’s theory investigated the guarantor position based on a dispassionate analysis of corporate structure and the actual governance structure within. This theory is persuasive and useful in practice as it is based on reality. Although it is unlikely that the management status of an illegal organization’s leader—who issues illegal directives—will be acknowledged, it is not easy to avoid the guarantor position on the grounds of manpower control. However, given the possibility that some enterprises operate in the same way criminal organizations do, applying organizational governance theory should not be completely ruled out, but retained as an ultima ratio for exceptional cases. It is appropriate to accept penal responsibility as a generality by actively acknowledging the guarantor position of enterprise owners and management.