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Criminal Sanction on Corporate Activity(Ⅱ) -Social Responsibiliy and Compliance Program of Enterprises-
Criminal Sanction on Corporate Activity(Ⅱ) -Social Responsibiliy and Compliance Program of Enterprises-
  • LanguageKorean
  • Authors Chunsoo Yang
  • ISBN978-89-7366-868-7
  • Date December 01, 2010
  • Hit268

Abstract

This study examined social responsibility as well as programs of compliance with laws and regulations of the enterprises. The study consisted of two parts: social responsibility of the enterprises, and programs of compliance with laws and regulations. Chapter 2 investigated the former, while Chapter 3 did the latter.
Chapter 1 discussed needs of the study. The author said increase of the crimes committed by the enterprises, problems of bilateral punishment norms for control of the enterprises from point of view of the Constitution and the Criminal Act, new control models that can replace or supplement bilateral punishment regulations, and programs of compliance of laws and regulations for the purpose of control. Considering close relations between programs of compliance with laws and regulations and social responsibility of the enterprises, the study examined social responsibility of the enterprises as well to clarify values of the programs.
Chapter 2 examined social responsibility of the enterprises. At first, the author adopted theoretical preposition that could investigate social responsibility of the enterprises, and investigated social responsibility that could be distinguished from legal responsibility (Chapter 2, paragraph 1-1). The author investigated responsibility itself from point of view of philosophy of law. The responsibility is said to be phenomenon of communication having variable characteristics. And, the responsibility cannot be separated from the justice to divide into legal responsibility, moral responsibility, political responsibility and historical responsibility. The author discussed social responsibility based on philosophy of law by using responsibility theory of H. Jonas, a German environmental philosopher.
The author examined social responsibility from point of view of law of the enterprises. (Chapter 2, paragraph 1-II). The author defined the enterprise as a kind of social system by using theory of N. Luhmann, and said that the enterprise had not only private relations but also public relations from point of view of the enterprise based on either the contract or the society. And, the author said that the enterprise should have social responsibility from pont of view of law of the enterprise. And, the study briefly investigated development and current status of social responsibility (Chapter 2, paragraph 1-II).

The study intensively investigated social responsibility of the enterprises (Chapter 2, paragraph 2). At first, the study classified the responsibility into types (Chapter 2, paragraph 2-I). The author classified the responsibility into some types depending upon properties of the responsibility as well as relations between enterprises and environment.
The study investigated ethics management that belonged to a kind of social responsibility (Chapter 2, paragraph 2-II), in particular, problems and strategies of the ethics management. And, the study examined ethics management of Samsung Electronics Company and researched its limitation. The limitation on the ethics management included internal practices of the enterprises, symbolic and visible ethics management, and separation between ethics management and market theory.
The study investigated corporate governance that comprises social responsibility together with the ethics management. (Chapter 2, paragraph 2-III), for instance, concepts, history and status of the corporate governance.
The author reached an intermediate conclusion of Chapter 2 that not only ethics management but also corporate governance should have social responsibility to have organic relations.

Chapter 3 examined program of compliance with laws and regulations. The chapter described concept of the program (Chapter 3, paragraph 1) and discussed introduction of the program (Chapter 3, paragraph 2). The author made use of regulation theory, theory of the Criminal Act, criminology and business administration. (Chapter 3, paragraph 2-I).
The regulation theory is; The program of compliance with laws and regulations can supplement limitation of regulation theory of order and control that is focused on punishment. The program can help overcome theoretical and practical problems of modern criminal act from point of view of theory of the criminal act.
And, the program can prevent corporate crimes from being neutralized by corporate members in the name of internal practice from point of view of criminology. The program can be used to innovate enterprises from point of view of business administration.
The study suggested four of practice principles to put the program into practice (Chapter 3, paragraph 2-II). The program shall put into practice according to principles of procedures, division of powers, functional control and reflective control.
The study investigated status of the program of compliance with laws and regulations (Chapter 3, paragraph 3). At first, the study examined discussion in Germany of the program (Chapter 3, paragraph 3-II). Not only Article 161 of the Stock Act of Germany but also Article 130 of the Act on Violation of Order of Germany is said to have relations with the program. And, the study investigated status of the systems and cases in Korea (Chapter 3, paragraph 3-III). The study examined not only Article 23 of the Bank Act but also Article 28 of the Act on Integration of the Capital Market. And, the study investigated the program of compliance with laws and regulations of Samsung Securities Company.

And, the study investigated practice strategies and legal effects of the program (Chapter 3, paragraph 4). The author classified elements of the program into five (Chapter 3, paragraph 4-II): in other words, will of top management, organization of the department that puts the program into practice, election of qualified monitors, enactment of norms being suitable to the organization, and reflective procedure mechanism.
And, the study examined application areas of the program (Chapter 3, paragraph 4-III). In this study, application areas of the program were often overlapped with those of ethics management.
Lastly, the study investigated legal effects of the program (Chapter 3, paragraph 4-IV). The owner of an enterprise can be exempted from bilateral punishment when he follows the program strictly. And, the practice of the program itself can be applied by the principle of judgment of the management. And, the practice of the program may give legal effects that the enterprise can be exempted from money penalty as well as initiated inspection.

The program of compliance of laws and regulations that has social responsibility of the enterprise can help improve corporate governance and put ethics management into practice and supplement limitation of punishmentoriented criminal regulations to be new regulation model. The study said that the program could not replace conventional type of punishment completely. Therefore, not only punishment but also the program shall establish mutual cooperation relations to control enterprises well.
The author thinks that it takes time to evidence functions of the program of the study. This is because some of famous criminal law scholars in Germany are suspicious of success of the program of compliance with laws and regulations. But, the author thinks that hasty conclusion shall be avoided. At the moment, the program may show its function while watching it with patience.
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