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(영문) 헌재 2011. 5. 26. 선고 2010헌가98 공보 [골재채취법 제51조 위헌제청]
[공보176호 805~808] [전원재판부]
Main Issues

Whether Article 51 of the Aggregate Extraction Act (amended by Act No. 4428 of Dec. 14, 191) which provides that "where an agent, employee, or other worker of a corporation commits an act falling under subparagraph 1 of Article 49 in connection with the business of the corporation, the corporation shall also be punished by a fine under the relevant Article (hereinafter referred to as "the instant legal provision") violates the Constitution against the principle of responsibility (affirmative)

Summary of Decision

The legal provision of this case does not stipulate at all the corporate decision-making and act structure, which serves as the basis for criticism on the criminal acts of employees, etc., that is, the corporation's independent responsibility for the result of the act committed by employees, etc., but merely commits a criminal act against the business

It is against the principle of the rule of law and the principle of the responsibility derived from the principle of the principle of the principle of the law of the state and the principle of the principle of the responsibility derived from the principle of the principle of the law of the state by imposing punishment on the corporation without asking whether or not

Dissenting Opinion by Justice Cho Jong-dae

The legal provision of this case is punishable in cases where a corporation fails to perform its duty to direct and supervise its executives and employees, thereby preventing an occupational misconduct of its executives and employees. Therefore, it is difficult to deem that the legal provision of this case violates the principle of liability.

Dissenting Opinion by Justice Lee Dong-bok

In the language and text of the legal provision of this case, even though the term “the negligence in the appointment and supervision of a corporation’s employees or other causes attributable to them” is not specified, it can be interpreted that the legal provision of this case is punished only when there are causes attributable to them, and it does not contravene the principle of accountability

Documents subject to adjudication;

Article 51 of the Aggregate Extraction Act (amended by Act No. 4428 of Dec. 14, 1991) provides that "where an agent, employee or other worker of a corporation commits an act falling under the provisions of subparagraph 1 of Article 49 in connection with the business of the corporation, the corporation shall also be punished by a fine under the relevant Article."

[Reference Provisions]

Article 10 of the Constitution

Article 49 subparagraph 1 of the Aggregate Extraction Act (amended by Act No. 4428 of Dec. 14, 1991)

Article 14(1) of the Aggregate Extraction Act (amended by Act No. 8479 of May 17, 2007)

Reference Cases

Constitutional Court Decision 2008HunGa14 on July 30, 2009, Supreme Court Decision 21-2Sang, 77

Parties

Jeju District Court Changwon Branch Branch Court

○○ Construction Agent Co., Ltd., Attorney Kim Sung-sung

violation of the Aggregate Picking Act of 2010 high-level 712

Text

Article 51 of the Aggregate Picking Act (amended by Act No. 4428 of Dec. 14, 1991) provides that "where an agent, employee, or other worker of a corporation commits an act falling under the provisions of subparagraph 1 of Article 49 in connection with the business of the corporation, the corporation shall also be fined in accordance with the provisions of Article 49."

Reasons

1. Summary of cases and subject matters of adjudication;

A. Summary of the case

In the instant case, the Defendant applicant filed a request for formal trial (Seoul District Court Jinwon Branch Branch Decision 2010Da712) and filed a request for an adjudication on the unconstitutionality of Article 51 of the Aggregate Extraction Act during the said lawsuit, and the court accepted this request and filed a request for an adjudication on the unconstitutionality of the Act on the unconstitutionality of the Aggregate Extraction Act. The court accepted the request and filed a request for an adjudication on the unconstitutionality of the Act on the unconstitutionality of the Aggregate Extraction Act as follows: “The Defendant, who is an employee of the Defendant Company, worked as a person in charge of the construction site of an industrial complex performed by the Defendant Company from November 26, 2009 to January 19, 2010.”

(b) Object of adjudication;

In Article 51 of the Aggregate Extraction Act, the court requested a trial on whether the portion of "if an employee or other employee of a corporation commits an act falling under the provisions of Article 49 in connection with the business of the corporation, not only shall the offender be punished, but also the corporation shall be punished by a fine under the relevant Article."

However, in the relevant case, since Article 51 of the Aggregate Extraction Act (amended by Act No. 4428 of Dec. 14, 1991) provides that a person who is an agent, employee, or other employee of a corporation (hereinafter “employee, etc.”) conducts aggregate collection business in violation of subparagraph 1 of Article 49 of the same Act, the scope of the violation provided for in Article 49 of the same Act, which is the penal provision, shall be limited to “the part of Article 49 subparag. 1, which is the part related to the relevant case.”

In addition, although the court requested an adjudication on the unconstitutionality of law only on the part of the “employee” of a corporation, the agent and employee are not easy to distinguish between the agent, employee and employee as a kind of employee, and the examination on the unconstitutionality of the law is identical. Therefore, it is reasonable to expand the subject of the adjudication to the “agent, employee and other employee” of the corporation without limiting it to the “employee and other employee” of the corporation

Therefore, Article 51 of the Aggregate Extraction Act (amended by Act No. 4428 of Dec. 14, 1991) provides that "where an agent, employee, or other worker of a corporation commits an act falling under Article 49 subparagraph 1 in connection with the business of the corporation, the corporation shall be punished by a fine under the relevant Article (hereinafter referred to as "the instant legal provision") is in violation of the Constitution, and the contents thereof (the bottom) and related provisions are as follows.

【Provisions Subject to Adjudication】

Aggregate Extraction Act (Law No. 4428 of December 14, 1991)

Article 51 (Joint Penal Provisions) If a representative of a juristic person, or an agent, employee or other servant of a juristic person or individual commits an offence under Article 49 or 50 in connection with the business of the juristic person or individual, not only shall such offender be punished, but also the juristic person or individual shall be punished by a fine under

[Related Provisions]

Aggregate Extraction Act (Law No. 4428 of December 14, 1991)

Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than three years or by a fine not exceeding 10 million won:

1. A person who has operated the aggregate extraction business without having his business registered in violation of the provisions of Article 14 (1);

Aggregate Extraction Act (amended by Act No. 8479 of May 17, 2007)

Article 14 (Registration) (1) A person who intends to operate an aggregate extraction business shall register with the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu (referring to the head of an autonomous Gu; hereinafter referred to as the "head of a Si/Gun/Gu") having jurisdiction over the location of his/her main office: Provided, That

2. A summary of the reasons for requesting the court for unconstitutionality;

Where employees, etc. employed by a corporation commit a violation in connection with the corporation's business, regardless of which fault or fault of the corporation, if there is an employee's criminal act with respect to such an employee's criminal act, this case's legal provision that provides that the corporation which is the business owner shall be punished automatically violates the rule of law and the principle of liability derived from the principle of legality.

3. Determination

A. The legal provisions of this case stipulate that if an employee employed by a corporation commits a certain violation, etc., the corporation that employs the employee shall be punished by a fine as provided for in the penal provisions for the employee.

In other words, the legal provision of this case does not provide for the existence of an employee's participation in a criminal act or a violation of a duty of care to supervise an employee's act as a requirement for punishment, but does not provide for the possibility of exemption for a corporation. Accordingly, the legal provision of this case also provides for the punishment of a corporation whose business owner is an employee, etc. without asking for any error in such an employee's crime.

B. The essence of a punishment is a sanction against a crime, and its nature is a criticism against an act which has been adversely assessed by the legal order. However, even if the legal order has caused a negative assessment, if the occurrence of such a result is not caused by any mistake, it cannot be imposed on any person solely on the ground that the negative result has occurred.

As such, the principle of responsibility for punishment is the basic principle of criminal law, and is derived from the purport of Article 10 of the Constitution at the same time, which is the principle inherent in the principle of the rule of law under the Constitution, and such principle is also applied to juristic persons like natural persons.

However, in accordance with the legal provisions of this case, if a corporation performs its duty of care for appointment and supervision with respect to the violation of employees, etc., it is inevitable to impose punishment on the corporation even if there is no error.

As can be seen, the legal provision of this case does not stipulate at all the corporate decision-making and action structure, namely, the corporate independent responsibility for the result of an act committed by an employee, etc., which is the basis of criticism against a criminal act by an employee, and is subject to criminal punishment against a corporation solely on the ground that an employee, etc. committed a criminal act with respect to his/her business. This goes against the principle of a rule of law and the principle of liability derived from the principle of no punishment without asking for the existence of liability against another person’s crime (see Constitutional Court Decision 2008Hun-Ga14, July 30, 209; Supreme Court Decision 21-2, 77).

4. Conclusion

Therefore, since the legal provision of this case is in violation of the Constitution, it is so decided as per Disposition by the assent of all participating Justices, except for the dissenting opinion by Justice Cho Jong-dae, as set forth in the following 5th, and the dissenting opinion by Justice Lee Dong-dae, as set forth in the above

5. Dissenting Opinion by Justice Cho Jong-dae

Where an employee, etc. of a corporation commits an illegal act with respect to the business of a corporation, the corporation may be deemed to have committed an illegal act by using the act of an employee, etc., or failed to prevent the illegal act due to his/her failure to perform his/her duty to direct and supervise employees, etc. Therefore, even if the corporation concurrently punished the illegal act

The legal provisions of this case also stipulate that if an employee of a corporation commits an illegal act in connection with the business of the corporation, the corporation shall be punished as a fine. However, the corporation's business

Since punishment is imposed in cases where an employee was unable to prevent an occupational misconduct due to his/her failure to perform his/her duty to direct and supervise employees, etc., it is difficult to view it as a violation of the principle of liability (see, e.g., Dissenting Opinion by Justice Cho Jong-dae, etc., Supreme Court Order 2009Hun-Ga18, Jul. 29, 20

6. Dissenting Opinion by Justice Lee In-bok

In the instant legal provision, the punishment of a corporation whose business owner is an employee, etc., other than a person who has committed an act of violation under the law of this case, shall be imposed by the same fine, rather than by the employee, etc. to seek the profit of an individual, such as an employee, or by the lack of individual ethics such as the employee, etc., for the benefit of a corporation, or by the negligence in the appointment and supervision of an institution or intermediary manager of a corporation, or in fact, for the benefit of a corporation, or by the negligence in the appointment and supervision of the relevant employee, it is difficult to clarify the responsibility for the complicated and distributed business structure of the corporation, and further, it can be deemed that such act of violation is attributable to the defect in the operation system or decision-making structure of the corporation which is insufficient to prevent such a broad and broad violation. Therefore, the corporation

However, even according to the language and text of the legal provision of this case, the scope of a corporation punished by a criminal act of employees, etc. is limited to cases where an employee, etc. commits a violation, not to include any unrelated corporation with respect to a criminal act of employees, etc., but with respect to his/her business. “Negligence in the appointment and supervision of an employee, etc. of a corporation” can be inferred as a subjective element that connects the “business” of a corporation and “violation” of employees, etc.

Therefore, even if the language and text of the legal provision of this case does not expressly state “the fault in the appointment and supervision of an employee of a corporation”, a punishment is to be imposed only when there is such a negligence. It is within the scope of the literal interpretation, which also conforms to the principle of constitutional interpretation, and the legal provision of this case, when premised on such interpretation, cannot be deemed to be in violation of the principle of responsibility for punishment (see, e.g., Dissenting Opinion by Justice in the Decision 2009Hun-Ga18, Jul. 29, 2010).

Judges

Justices Lee Han-tae (Presiding Justice) Lee Jong-tae (Presiding Justice)

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