산업안전보건법상 신분범의 법인 처벌과 양벌규정에 대한 새로운 이해

Abstract

In the case of a status offender with a status including a corporation, such as a “business owner” in the Occupational Safety and Health Act, there are many negatives on whether a natural person who is an employee of a corporation without a status can become a criminal subject under Joint Penalty Provisions. In addition, the negative theory states that natural people are not the subject of crime, so even corporations cannot be punished even if they are subject to Joint Penalty Provisions. On the other hand, the Supreme Court and some theories say that corporations can naturally be punished by the Joint Penalty Provisions, and that natural people can also be punished by viewing the phrase “in addition to punishing actors” in Joint Penalty Provisions. The Supreme Court's view conflicts with other precedents of the Constitutional Court and the Supreme Court on literary interpretation and is unconstitutional in violation of the principle of legality, while the majority theory raises concerns that both natural and legal persons cannot be punished.
 Considering the constitutional Principle of Legality, the explicit provisions of the law should be more important. Unless there is a separate provision that excludes a corporation from a criminal subject, it can be constitutionally and reasonably resolved by interpreting the law as it is and directly recognizing the criminal capacity of the corporation as it is in the Penalty Clause. The logical premise is that the starting line for discussing this issue already stipulates that “a corporation is defined as a criminal subject in the Penalty Clause” In addition, if the Constitutional Court and the Supreme Court's precedents say that a natural person should recognize the independent responsibility of a corporation based on Joint Penalty Provisions, it is not necessary to assert that laws or legal provisions other than Joint Penalty Provisions cannot be the basis for a corporation to become a criminal subject. This argument is new, but it can be seen as an argument to apply it to the Occupational Safety and Health Act, which has explicit regulations, because there is already a claim to recognize the criminal capacity of a corporation for administrative offenders.