기업 내 이사회 결정의 형법적 책임: 불법적 결정시 공동정범의 성립가능성에 대한 독일에서의 논의를 중심으로

At the present time, in the case of a highly organized enterprise, a large numberof illegal decisions are made systematically by a formal mechanism such as an officialboard of directors, rather than by the business owner or by the on-site supervisor. Amember of the board of directors, as an individual of the large group, may avoidbeing directly responsible for the decisions. In Germany, there have recently beenlively discussions about the possibility of considering the guilt of the participants ina joint decision involving corporate crimes. Because boards of directors make varioustypes of decisions, such as active participation/intentional negligence, and deliberateoffenses/unintentional offenses, it is advisable to have segmented investigationsaccording to each type rather than to apply the general theory of co-offense. ① In the case where board members intentionally make joint decisions thatproduce illegal results through prior consultations in order to produce certain results,the individuals who participated in the decision-making process are liable asaccomplices due to the acknowledgment that they affect the resulting decisionstogether with other members. Evenwhentherewasnopriorconsultation, it is reasonablethat all of the individuals admit their culpability as accomplices, because they wereaware that they were not only ready to accept the decisions, but also jointlyresponsible for the results caused by the decisions. ② In the case of intentionalnegligence in a majority-vote decision where members deliberately decide not toperform required acts that can prevent unlawful results, it is debatable whetherintentional negligence should be regarded as a co-offense. Even in this case, the Supreme Court regards intentional negligence as a co-offense because of its intention. Based on the theory of obligation offense, intentional negligence is preconditioned by the guarantor’s particular obligation, and thus if those with the particular obligation intentionally neglect to fulfill their obligations in collusion, it is reasonable to consider them as accomplices in a co-offense. According to the theory of functional act domination, in which each individual member plays their mandatory role in consideration of the overall scheme of the offense, the fact that the negligence brought by these individual members affects the final decision can explain the establishment of co-offense. ③ In the case where individuals contribute to the problematic joint decision without the intention to do so while overlooking that possibility, it is debatable whether negligence should be established as a co-offense. Many do not regard negligence as a co-offense for the reason that joint planning of the offense is lacking. But, the law only requires “unity of action” to establish co-offense, and thus from the standpoint of “collective conduct of decision-making in violation of duty of care,” it is possible to regard negligence as a co-offense. ④ In the case where members, without prior consultation, merely refuse to perform required acts that can prevent unlawful results, if they previously had reviews, discussions or reports regarding the issue, in consideration of the internal circumstances of the company, co-offense can be established on the basis of their actual working relationship. Even in cases where there were no prior discussions in any manner regarding group-decision making, it is possible to establish co-offense on the basis that the board members, as guarantors, have duties to prevent certain group decisions.