회계부정의 형사책임 개선과제

Accounting fraud is a high crime. Especially, since Realgesellschafts like stock company isn't able to pay the business debt except with its own asset, an accounting fraud on such asset can cause enormous harm to not only to members of company itself but also others otherwise connected to company like whom issued or holds the bonds of such company. Therefore such fraud should be strictly punished. Let's take a look at a punishment on accounting fraud committed by a manager or any other person in charge of accounting affairs of a company-whom take the first responsibility of such fraud. If any person of a company subject to external audit prepares and publishes any false statements or consolidated financial statements, he/she is punished by imprisonment with labor for not more than seven years according to Act on External Audit of Stock Companies. This is well-balanced in comparative perspective, so it need not be amended. However, if a person of a company subject to Financial Investment Services and Capital Markets Act, a company like stock-listed corporation, makes a false statement or representation of a material fact in any of the documents or omits statement or representation of a material fact, he/she is sentenced to imprisonment with labor for not more than five years. This is comparatively weaker punishment than that of the United States or Japan. So in order to effectively prevent accounting frauds, Article 444 (13) of Financial Investment Services and Capital Markets Act should be amended to be able to punish such criminals to imprisonment with labor for not more than ten years. Furthermore, since a person of a company not subject to external audit commits the same crimes, he/she is punished only with Administrative Fines, and since such punishment needs to be strengthened, if a person in limited liability company commits accounting fraud, he/she should be able to be sentenced to at least imprisonment with labor for not more than three years. Current law(Articles 401-2 and 635 (1) of the Commercial Act) sets that if an auditor or an external auditor-who takes secondary responsibility of the accounting fraud- fails to make required entries in an audit report or makes any false entry therein. he/she shall be punished by imprisonment with labor for not more than five years. This seems to be well-balanced considering other laws and that it is a punishment on ones with secondary responsibilities. Let's take a look on punishment on audit interference. Audit interference like submitting false data to an auditor, should be punished as same as the fraud accounting itself since it is also a fraud and such frauds should be strictly prohibited in order to provide a clean environment for fair auditing so to prevent further accounting frauds. However, current Commercial Act(Articles 401-2 and 635 (1)) punishes such crime with not more than three years of imprisonment with labor. It is comparatively weak and should be amended to an imprisonment with labor for not more than 7 years, like it is in accounting fraud. In addition, accounting fraud is what the representative of a corporation like manager commits as one of his works, so it can be considered as a crime of corporation itself. So the fines on corporation itself needs to be strengthened. However, since current Joint Penalty Provisions makes it unable to punish a criminal without intent-like the corporation itself- severer than an criminal with intent-like manager him/herself-, it is required to adopt the Criminal Liability of Corporation so make it able to punish the corporation properly. Finally, in order to prevent accounting fraud, we need not only merely depend on auditing inside and outside the company, but also need financial supervisory authorities which has a power to impose an administrative restriction, or supervision by stakeholders who shares interests in the company. However, in order for these stakeholders to supervise, shareholder's right to inspect books of account should be guaranteed.