산업안전보건법의 양벌규정 개정에 관한 연구 -기업경영진의 형사책임을 중심으로 - (The Criminal Liability of the Directors on the Industrial Safety and Health)

서지정보

· 발행기관 : 안암법학회
· 수록지 정보 : 안암법학 / 27호 / 363 ~ 396페이지
· 저자명 : 전형배

초록

'Korea Industrial Safety and Health Act' can be understood generally as a legislation to require employers to conduct diverse duties concerning industrial safety and health properly. Enforcement of law is guaranteed by the offence and penalty articles, among which the joint penal provision to regulate the corporate and directors criminal liability is received much concern. There are little controversies about imposing penalties on the corporate, but there is a lot of disputes on the directors criminal liability. The attitude of the courts' precedents doesn't provide corporate directors with generally accepted standard of criminal liability.
This paper is searching for the relevant requirements to impose criminal liability on corporate directors who misconduct in the industrial safety and health management. Two ways may be considered in constructing directors liability. One is to organize directors liability as a kind of conspiracy liability with the offenders as shown in the British legislation example of 'Health and Safety at Work Act 1974', the other is to compose directors liability as management failure of industrial health and safety on the corporate. The former often interrupts punishment of directors, because it is based on the limited and restricted theory of conspiracy. This study prefers the latter which clarifies the contents of directors liability and initiate legal enforcement effectively.
This study suggests an amendment to Korea Industrial Safety and Health Act article 71, standing on the viewpoint above. Amendment establishes article71(2) newly which contains directors liability to the corporate. Director is guilty of offences unless the offence took place without the director's knowledge or whether the director was not reasonable able to have acquired that knowledge, or the director used all due diligence to prevent the corporate committing the offences.

영어초록

'Korea Industrial Safety and Health Act' can be understood generally as a legislation to require employers to conduct diverse duties concerning industrial safety and health properly. Enforcement of law is guaranteed by the offence and penalty articles, among which the joint penal provision to regulate the corporate and directors criminal liability is received much concern. There are little controversies about imposing penalties on the corporate, but there is a lot of disputes on the directors criminal liability. The attitude of the courts' precedents doesn't provide corporate directors with generally accepted standard of criminal liability.
This paper is searching for the relevant requirements to impose criminal liability on corporate directors who misconduct in the industrial safety and health management. Two ways may be considered in constructing directors liability. One is to organize directors liability as a kind of conspiracy liability with the offenders as shown in the British legislation example of 'Health and Safety at Work Act 1974', the other is to compose directors liability as management failure of industrial health and safety on the corporate. The former often interrupts punishment of directors, because it is based on the limited and restricted theory of conspiracy. This study prefers the latter which clarifies the contents of directors liability and initiate legal enforcement effectively.
This study suggests an amendment to Korea Industrial Safety and Health Act article 71, standing on the viewpoint above. Amendment establishes article71(2) newly which contains directors liability to the corporate. Director is guilty of offences unless the offence took place without the director's knowledge or whether the director was not reasonable able to have acquired that knowledge, or the director used all due diligence to prevent the corporate committing the offences.

참고자료

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