외부감사인의 독립성 유지의무 및 관련 범죄에 대한 형법이론적 검토- 감사수임죄/비감사용역수임죄(공인회계사법 제53조 제3항 제1호)를 중심으로 -

According to article 53 of the Korean Certified Public Accountant Act, any certified public accountant or an accounting company, who carries out functions relating to auditing or certifying financial statements in the violation of the Independence Rules or Non-Audit Services Prohibition rules shall be punished by imprisonment for not more than one year, or by a fine not exceeding 5 million won. It is a well-established criminal law theory in Korea that criminal punishment must seek to protect legal goods against criminal violation (harm principle) and should be proportionate to the offense and to the offender, in the sense that the punishment reflect the offender’s culpability, or desert (culpability principle). Also the criminal law must be ultima ratio, the last resort (ultima ratio principle). This study examines whether article 53 can be justified by the basic principles underlying traditional criminal law above. According to the analyses and explanations in the main text, it concludes that article 53 challenges the harm principle, the culpability principle, and ultima ratio principle and recommends annulling article 53.