영미 기업범죄 형사책임의 전개

Corporate Criminal Liability in Common Law Countries

This article is for researching the historical development of corporate liability in common law countries. Corporations, as vital actors in national economies and the global economy, are endowed with legal personality. As such they have capacity to act as subjects of law, and they can also commit crimes. However, how does one consider their capacity, as non-physical subjects of law, to act criminally? Traditional criminal law and criminal liability have been long and firmly associated with the criminal acts of physical persons, convincingly attributing to them mens rea and actus reus as constitutive elements of crime Common law countries such as UK and USA have, in the past, endeavored to contain corporate criminality. Initially, both countries, the initial assumption was that a corporation, not comparable with a human being, could not commit a crime. In the nineteenth century in common law countries began to recognize that the emergence, development and activities of corporations entailed a relevance for criminal law also they could commit crimes. Common law courts dealt with corporate crime by adopting the doctrine of corporate legal personality as a pragmatically useful fiction. Two different judicial approaches evolved: the identification doctrine in the UK and vicarious liability in the USA. However, both judicial practices’ have weak points to impute corporate liability on culpable corporation. Therefore, both countries have tried to modify their jurisdiction for the safety of the public and justice. Finally, it can be shown a slight convergence in defining and punishing corporate crime has taken place. However, both theories were not satisfied to impute criminal liability on culpable corporation completely. That is corporate liability was based on not a culpable corporation but human beings’ (employees) fault. Therefore, new approach, for finding a corporate own mens rea and actus reus, was introduced. Korean penal code can learn or even may adopt common law countries’ judicial practice in order to protect the public from the increasing corporate crime. In that case, it will be necessary to understand corporate own mens rea and actus reus.