미국에서의 법인에 대한 형사책임귀속 모델과 그 시사점 (The Model on the Corporate Criminal Liability in the United States and Its Implications for Korea)

서지정보

· 발행기관 : 중앙법학회
· 수록지 정보 : 중앙법학 / 17권 / 2호 / 297 ~ 334페이지
· 저자명 : 최대호

초록

This Article examines corporate criminal liability in the United States. Under the common law, corporations could not commit crimes. Since the U.S. Supreme Court's New York Central decision, however, it has been recognized that corporations may be held liable even for crimes requiring criminal intent.
There have been two corporate criminal liability standards under which corporations may be held criminally liable for the actions of their officers, agents, or employees: the doctrine of respondent superior and the Model Penal Code standard. First of all, under the doctrine of respondent superior, a corporation may be held liable for the crime of its officer, agent, or employee provided that the officer, agent, or employee acted within the scope of his or her employment and acted with the intent to benefit the corporation. Here, the agents and the employees for whose conduct the corporation may be held criminally liable are not limited to high-level agents or employees. Additionally, it is irrelevant whether the corporation has designed and implemented compliance policies in determining corporate criminal liability.
Secondly, the Model Penal Code standard treats corporate criminal liability differently based on whether the offense is defined by the Criminal Code or not. According to the Model Penal Code §2.07(1)(a), a corporation may be held criminally liable for a regulatory offense that is defined by a statute other than the Criminal Code only when legislative purposes to impose criminal liability on corporations plainly appears in the statute, and its officer, agent, or employee committed the offense on behalf of the corporation within the scope of his or her employment. The Model Penal Code §2.07(5), however, allows a due diligence defense against corporate criminal liability for regulatory offenses. When it comes to crimes defined by the Criminal Code, the Model Penal Code §2.07(1)(c) provides that a corporation may be held criminally responsible only when its board of directors or high managerial agent got involved in such crimes in the form of authorization, request, command, performance, or tolerance.
These two standards, however, have not been free from criticism. Especially, the doctrine of respondeat superior has been criticized in that it does not consider whether a corporation has designed and implemented effective compliance policies when determining the criminal liability of such corporation. It could be problematic with regard to deterrence that is a central justification for criminal liability in general. As a result, many legal scholars and practitioners have argued that corporate criminal jurisprudence should be improved, and thereby the existence of corporate compliance policies should be considered in determining corporate criminal liability.

영어초록

This Article examines corporate criminal liability in the United States. Under the common law, corporations could not commit crimes. Since the U.S. Supreme Court's New York Central decision, however, it has been recognized that corporations may be held liable even for crimes requiring criminal intent.
There have been two corporate criminal liability standards under which corporations may be held criminally liable for the actions of their officers, agents, or employees: the doctrine of respondent superior and the Model Penal Code standard. First of all, under the doctrine of respondent superior, a corporation may be held liable for the crime of its officer, agent, or employee provided that the officer, agent, or employee acted within the scope of his or her employment and acted with the intent to benefit the corporation. Here, the agents and the employees for whose conduct the corporation may be held criminally liable are not limited to high-level agents or employees. Additionally, it is irrelevant whether the corporation has designed and implemented compliance policies in determining corporate criminal liability.
Secondly, the Model Penal Code standard treats corporate criminal liability differently based on whether the offense is defined by the Criminal Code or not. According to the Model Penal Code §2.07(1)(a), a corporation may be held criminally liable for a regulatory offense that is defined by a statute other than the Criminal Code only when legislative purposes to impose criminal liability on corporations plainly appears in the statute, and its officer, agent, or employee committed the offense on behalf of the corporation within the scope of his or her employment. The Model Penal Code §2.07(5), however, allows a due diligence defense against corporate criminal liability for regulatory offenses. When it comes to crimes defined by the Criminal Code, the Model Penal Code §2.07(1)(c) provides that a corporation may be held criminally responsible only when its board of directors or high managerial agent got involved in such crimes in the form of authorization, request, command, performance, or tolerance.
These two standards, however, have not been free from criticism. Especially, the doctrine of respondeat superior has been criticized in that it does not consider whether a corporation has designed and implemented effective compliance policies when determining the criminal liability of such corporation. It could be problematic with regard to deterrence that is a central justification for criminal liability in general. As a result, many legal scholars and practitioners have argued that corporate criminal jurisprudence should be improved, and thereby the existence of corporate compliance policies should be considered in determining corporate criminal liability.

참고자료

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