의료법 등의 양벌규정과 책임원칙


Joint Penal Provisions and Criminal Liability in Medical Law


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In November 2007, the Korean Constiutional Court held that a joint penal provision in which the individual employer is punished when his or her employee is determined to have committed a crime was unconstitutional, because the joint penal provision had no contents for the culpability of an individual employer and thus violated the constitutionally protected principle of culpability. After the Korean Constitutional Court’s judgment, since December 2008 the Ministry of Justice began to change the old joint penal provision into the new revised joint penal provision. On January 2010, the old joint penal provisions of 110 laws were revised. The new revised joint penal provision adds only an additional sentence: “If a juristic person, an entity or an individual perform due care and supervision over its employee for the prevention of such a crime, it will be exempted from the punishment”. But an presumption of negligence clause that is added in the new revised joint penal provision is still vacuum in concerned with supervision responsibility. Probably the new form of penal provision, that is understood to be a kind of the presumption of negligence, could let the burden of proof be changed from the public prosecutor to the accused, in other words employer-side. Especially, when joint penal provision is applied to hospital as administrative punishment, according to the hospital is a (juridical) foundation or not, the application of the joint penal provision is different and unfaithful. In my opinion, therefore, a corporation liability could be considered according to various liability of employee's business and the crime its employee committed because of an organizational failure of the corporation.


I. 들어가며
 II. 헌재 결정의 내용과 함의
  1. 헌법재판소 2007.11.29. 선고 2005헌가10 결정
  2. 헌법재판소 2009.7.30. 선고 2008헌가16
  3. 헌법재판소 2009.7.30. 선고 2008헌가24 전원재판부
  4. 헌법재판소 2009.10.29. 선고 2009헌가6
 III. 위헌결정 후의 개정법률의 내용과 해석
  1. 위헌결정 후 양벌규정의 개정 동향
  2. ‘상당한 주의와 감독’의 해석 문제
  3. 업무주체의 문제
  4. 불법태양에 따른 유형화의 문제
 IV. 양벌규정이 행정제재의 근거규정이 될 수 있는지의 여부
  1. 문제의 소재
  2. 양벌규정에 의한 처벌이 면허자격정지사유가 되는지 여부
  3. 판례의 태도
 V. 마치며


  • 황만성 Manseong Hwang. 원광대학교


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