회사를 처벌하는 양벌규정의 실효성에 대한 비판적 검토 - 회사불법 억지를 위한 최적 법제 모색 시론 -

Joint Penal Provisions which impose criminal punishment-fine-on corporations are still not functioning well since first instituted into former Customs Act in 1949. It is estimated that about 37% of all Korean laws contain joint penal provisions, but in fact, they are scarcely applied in real criminal cases. Legal persons are indicted in far less than 0.1% of all the criminal cases. By contrast, one of the parties is a legal person in almost half of civil cases. Legal personality is a legal instrument invented to separate patrimony and limit liability by entity shielding. Criminalizing a legal person allows individual wrongdoers or persons who benefited from illegal acts to hide behind the network or the concept of the legal person. That is, so-called‘ agency problem’can also happen in criminal procedures. Theories of corporate liability leave a host of questions unanswered on procedural and substantive oddities which are brought about while trying to invite a legal person into criminal system. It not only discords with the principle of culpability but is disadvantageous and inefficient to bring a legal person into criminal court. This article suggests that corporate misconducts be classified into four types-simple negligence, accidents, illegal profit, and disasters, and that different approaches are necessary for each of the types.