美國 判例法上 民事金錢罰과 二重處罰禁止의 原則에 관한 硏究 (Civil Money Penalties and Double Jeopardy Clause under the U.S. Case Laws)

서지정보

· 발행기관 : 고려대학교 법학연구원
· 수록지 정보 : 고려법학 / 51호 / 485 ~ 523페이지
· 저자명 : 김용재

초록

Civil money penalties are the harshest civil sanctions that the U.S.
federal bank regulators can levy against individuals. Although civil
money penalties have been on the books since 1978, the old maximum
penalty of $1,000 per day was comparatively modest in size. In the
Financial Institutions Reform, Recovery and Enforcement Act of 1989
(FIRREA), in the aftermath of the savings and loan crisis during
1980s, however, the U.S. Congress substantially expanded the grounds
for imposing civil money penalties and hiked the maximum penalties to
financially ruinous proportions.
Traditionally many people doubted the constitutionality of imposing
civil money penalties with other kinds of criminal punishment due to
the harshness and the double jeopardy concern. On December 10, 1997,
the U.S. Supreme Court in Hudson v. United States held that it does
not violate the Double Jeopardy Clause to criminally prosecute people
for violations of banking laws and regulations after imposing civil
money penalties on them for the same violations. With this decision,
the Court strongly disapproved and overruled the analysis employed in
United States v. Halper, a seminal double jeopardy case decided just
eight years earlier. The General Counsel to the Securities and Exchange Commission (SEC) and the Director of the SEC's Division
of Enforcement announced their public opinions that they now had a
green light to seek civil money penalties that were also the subject of
criminal investigations or prosecutions.
Hudson, like Halper before it, represents a major sea change in
double jeopardy law with respect to civil money penalties. To
understand which case represents the more faithful approach to double
jeopardy precedents, Part Ⅱ examines the purpose of the Double
Jeopardy Clause, the interests it protects, and its jurisprudence until
1989. Part Ⅲ and Ⅳ review and analyze the Halper and Hudson cases
in detail. In particular, Part Ⅲ criticizes the Halper approach seriously
based on precedent case laws (Mendoza-Martinez, Ward). Part Ⅴ
addresses a harmonizing approach to the Halper-Hudson cases in order
to induce more reasonable solution in this context. In addition, it deals
with other constitutional issues regarding the substantive due process
and excessive fine clauses. Finally, Part Ⅵ is the conclusionary part of
this paper.

영어초록

Civil money penalties are the harshest civil sanctions that the U.S.
federal bank regulators can levy against individuals. Although civil
money penalties have been on the books since 1978, the old maximum
penalty of $1,000 per day was comparatively modest in size. In the
Financial Institutions Reform, Recovery and Enforcement Act of 1989
(FIRREA), in the aftermath of the savings and loan crisis during
1980s, however, the U.S. Congress substantially expanded the grounds
for imposing civil money penalties and hiked the maximum penalties to
financially ruinous proportions.
Traditionally many people doubted the constitutionality of imposing
civil money penalties with other kinds of criminal punishment due to
the harshness and the double jeopardy concern. On December 10, 1997,
the U.S. Supreme Court in Hudson v. United States held that it does
not violate the Double Jeopardy Clause to criminally prosecute people
for violations of banking laws and regulations after imposing civil
money penalties on them for the same violations. With this decision,
the Court strongly disapproved and overruled the analysis employed in
United States v. Halper, a seminal double jeopardy case decided just
eight years earlier. The General Counsel to the Securities and Exchange Commission (SEC) and the Director of the SEC's Division
of Enforcement announced their public opinions that they now had a
green light to seek civil money penalties that were also the subject of
criminal investigations or prosecutions.
Hudson, like Halper before it, represents a major sea change in
double jeopardy law with respect to civil money penalties. To
understand which case represents the more faithful approach to double
jeopardy precedents, Part Ⅱ examines the purpose of the Double
Jeopardy Clause, the interests it protects, and its jurisprudence until
1989. Part Ⅲ and Ⅳ review and analyze the Halper and Hudson cases
in detail. In particular, Part Ⅲ criticizes the Halper approach seriously
based on precedent case laws (Mendoza-Martinez, Ward). Part Ⅴ
addresses a harmonizing approach to the Halper-Hudson cases in order
to induce more reasonable solution in this context. In addition, it deals
with other constitutional issues regarding the substantive due process
and excessive fine clauses. Finally, Part Ⅵ is the conclusionary part of
this paper.

참고자료

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