양벌규정상 처벌되는 행위와 행위자간의 불일치, 그리고 법인의 범죄능력 인정

In these days it is very obvious that as the bigger role of corporate is, more and more serious the result of corporate’s crime is. But our criminal system has denied the corporate’s criminal liability because our criminal system has admitted criminal liability should be vested in natural person. So joint penal provision in administration laws has performed a key role in direct punishment of the corporation. As these results, judicial precedents of Supreme Court tends to apply joint penal provision in the area where someone couldn’t be punished by joint penal provision so that a gap of punishment should not occurred. But that interpretation of law associated is not appropriate. For example, Framework of Construction Industry article 41 needs that construction works or renovation of special buildings shall be performed by constructors and penalty provision of article 96 forces a person who performs construction works in violation of Article 41 to be punished. As the result there is discordance between the person to be punished and the act to be punished. More over, article 98 as Joint Penalty Provisions says although no one is able to violate penalty provision of article 96 because he is not obliger of article 41, not only shall such violator be punished, but also the corporation or the individual shall be punished by a fine. So in this paper after finding inconsistency of judicial precedents, this study discuss that the problem and revision of joint penal provision based on adoption of corporate’s criminal liability. At first, for this study proves it’s claim objectively,will analyze the interrelationship between corporate’s criminal liability and theories - for example, system model, theory of identification, other theories derived from theory of identification-and then discuss if corporate’s criminal liability were adopted what come into force in interpretation of provision about joint penal that makes corporate to be offender.