기업범죄에 대한 형사 실체법 및 절차법적 대응의 국제적 추세와 함의 - 기업의 형사책임 및 공판 전 우회조치 확대 -

Global trend of criminal law against corporate crime is represented as expansion of corporate criminal liability from the substantive perspective and adoption of pre-trial diversion from the procedural perspective. Not solely the common law countries such as US and UK but also the civil law countries such as France and Germany tend to reflect this global trend. This trend illustrates the efforts of countries to achieve diverse purposes of criminal law in deterrence of corporate crimes by utilizing i) criminal penalties against corporations as an instrument to threat them and ii) pre-trial diversion, such as deferred prosecution agreement or non-prosecution agreement, as an instrument to induce their voluntary cooperation with investigation, improvement of internal compliance, and indemnification to victims. Through these substantive and procedural criminal law measures, countries aim to achieve retribution, specific and general deterrence, rehabilitation and restorative justice. Nevertheless, Republic of Korea lags behind this global trend. Republic of Korea fails to recognize corporate criminal liability against the crimes in general. Based on the principle of specialty, corporations can be criminally fined only if the relevant laws expressly provide a provision, so called “Joint Penalty Provision”. Therefore, the procedural measure of pre-trial diversion premised upon the corporate criminal liability is also absent. This paper through its comparative legal analysis on global trend of criminal law against corporate crime aims to encourage legal reform of Republic of Korea to improve corporate crime deterrence.