기업범죄의 예방장치로서의 준법장치와 양형 - 미국 연방양형지침을 중심으로 -

Compliance program is one of widely-adopted methods to suppress organizational/corporate crimes. In Korea, compliance programs began to be introduced into several corporate laws since the year 2000. Korean scholars tend to argue that government should add efforts to expand and embed compliance program among corporations and that effective compliance program should be counted as a mitigating sentencing factor in punishing corporation as a result of crime committed by its managers or employees, with reference to the US Federal Sentencing Guidelines (hereinafter the Guidelines). This paper tries to assess the validity of such arguments, by reviewing the transformation of the US compliance program and its implication. The introduction of the Guidelines in 1991 resulted in the tremendous expansion of compliance programs of various corporations in the US, with increasing similarity with the Guidelines. The compliance program of the 1991 Guidelines, however, went through a deep change in 2004. While the former compliance program adopted a legalistic approach which tried to deter corporate wrongdoings by the threat of punishment, the compliance program of 2004 tried to promote corporate culture of ethics. This transformation was triggered not so much by a serious of corporate scandals in early 2000s as by academic works on compliance programs. Drawing on several empirical and theoretical works, this paper argues that legalistic compliance is not so effective as expected and, under some conditions, counterproductive in terms of crime prevention, that compliance program should take cultural approach to be effective, that compliance program is in essence not a pro-corporate but pro-social mechanism, that the strictest compliance program is not necessarily the best option, and that nevertheless compliance program is necessary especially for the prevention of worst crimes. Considering the discussions above, the argument that compliance program should be considered in sentencing corporate crimes is too simplistic to be supported. For the compliance program to be considered in sentencing, the program should be culture-oriented and, if ever considered, should be done with considerable reluctance. As an implication, this paper makes a cautious proposition that the non-existence of compliance be counted as an increasing sentencing factor in case of serious corporate crimes and that the existence of compliance program be counted as a mitigating sentencing factor in case of minor corporate crimes.