미국의 고문희생자 보호에 관한 법에 따른 회사의 책임 - 회사의 수범자성 여부를 중심으로 -

Each year hundreds of men, women, and children face physical abuse, forced labor, sexual assault, rape, murder, and psychological abuse, each act of which constitutes torture in their own countries and even in their own homes. These people are not tortured for political dissidence or by oppressive governments, rather, they are tortured by entities very familiar to Americans, such as Del Monte, Coca-Cola, Ford, General Motors, IBM, Shell and the list could go on. The people who suffer torture by their hands are often unable to pursue justice for the acts committed against them because, rather than the perpetrator being a single human being, the force behind the victims’ abuse is a corporation. Torture is generally defined as any act directed against an individual by which severe pain or suffering, whether physical or mental, is intentionally inflicted for obtaining information, intimidation, or coercion. Torture by corporations may seem nonsensical, but corporations can be proponents of and responsible for torture in several different capacities. U.S. Congress recognized the destructive consequences of torture, and in response to the epidemic of torture, passed the Torture Victim Protection Act (TVPA), which provided a civil cause of action that could be brought in American courts for torture committed abroad. This legislation made it possible for victims to bring over fifty successful suits against their torturers and achieve justice through the American court system. In 2009, the Eleventh Circuit was the first circuit to interpret the word “individual” in the TVPA as applicable to corporations. Other circuits, however, have interpreted the TVPA as applicable only to physical individuals and not to corporations, which is inconsistent with the Eleventh Circuit’s holding and the TVPA. This Article argues that “individual” should be interpreted as applying to corporations under the TVPA based on legislative history, case law, and policy. It will provide an overview and analysis of how the courts have interpreted TVPA cases. It is manifestly clear that the TVPA can be used against corporations in the appropriate case. That fact may encourage foreign nationals to bring their lawsuits in the U.S. courts and global businesses must assume that they face a risk of liability in American courts for certain types of behavior abroad which may be equal to the risk such practices would create if occurring in the United States.