The sanction means limitation and prohibition of violation of the norms. In other words, the sanction is said to be subject to norms and to be source of norm power.
The government seems not to give norm power against deviation of the enterprises by criminal sanction as well as administrative sanction. In other words, the fine against the enterprise is too much small money to prevent crimes and to be blamed so much. So, the enterprise complains excessive sanction considering degree and contents of the violation of obligations. The natural person may be given fine, imprisonment and prevention of the threat from potential criminals: But, the enterprise shall be given not imprisonment but small amount of fine (The amount of fine of the enterprise shall be equivalent to that of natural person because of bilateral punishment (penalty against employer and employee) to be smaller than surcharge. So, prevention of the threat from potential criminals of the fine that is main sanction against the enterprise is said to be lower than that of money penalty is. Therefore, the fine that is criminal sanction against the enterprise needs to inspect it again.
The sanction of punishment has principle of self-limitation that has limitation on regulation of all of deviations behaviors according to the principle of "in dubio pro leo". New type of sanctions is being demanded continuously because of limitation of criminal law. Illegal act is often left without punishment because of the limitation. As a result, fine, surcharge, administrative fine for default and other monetary penalties are imposed to give enterprise sanction. So, prevention and sanction of corporate crimes need to increase. In other words, questions whether fine oriented criminal sanction is enough or not are raised continuously to control deviation of the enterprise. So, researchers are investigating new types of sanction from various kinds of point of view.
Franz von Liszt(1851-1919) said, there are something better than the criminal law (etwas, was besser ist als Strafrecht). The type of sanction against harmful behavior of the society can be socially agreed. And, degree of the sanction against deviation of the enterprise can be also socially agreed. This study may help produce base of social agreement. This study examined problems at discussion of new types of sanction against deviation or crimes of the enterprises. Although, I made efforts to develop new type of sanction, and I focused on expansion and reconstruction. I hope that this study could expand and reproduce studies on good sanction of corporate crimes.
In Korea, the corporation was given fine not by admission of criminal ability of the corporation but by bilateral punishment regulations. Such a method, however, can explain dual system of corporate crimes. To avoid contradiction, the corporation's criminal ability shall be admitted to enact regulations of corporate punishment, or to delete bilateral punishment regulations not to admit of criminal responsibility of the corporation. Not only the laws of the UK and the United States but also that of the continental law admits of crime ability of the corporation. In the past, the corporation was thought not to blame because natural person committed the corporate crimes as well, and to punish natural person only: In modern society, the corporation plans crimes by itself and takes anti-society actions through natural person. The corporate crime, in other words, crimes of the corporation is increasing so that criminal policy that punishes corporate crimes can help admit of crime ability of the corporation.
Current legal system has regulated fine for default, money penalty, surcharge, additional tax, fine, cancellation of the licence, suspension of the license and public notice of lists of the name to punish deviation of the corporation. The compensation system that is civil sanction has been regulated, and the Stock Exchange Proceedings Act is effective and valid. However, the sanction is not actually used or give adverse effect because of unreasonableness or have problem that the sanction is improper. The original goal of corporate crime was to focus on environmental crime and economic crime, but there are more violations of the Road Traffic.
The corporations pay small amount of the fine being equivalent to that of natural person as corporate expense together with various kinds of taxes and dues.
This study investigated variety and properness of reasonable sanction, and difference and overlap between sanctions. The overlap between sanctions occurs not only in Korea but also in foreign countries. The study examined violation of the Constitution based on overlap of the sanction. The purpose of each sanction may vary not to violate the principle of prohibition of dual punishment of Article 13 of the Constitutional law. The overlap between sanction needs to inspect it to avoid excessive regulation and control.
When the society is complicated and diversified, one law is unable to solve problems. So, various kinds of laws and regulations shall be combined to fill a gap between sanctions effectively.
The corporations take actions in estimated and reasonable way so that law and economics analysis may be very much useful. To lower rate of corporate crimes, not only more detection but also strict punishment was thought to be the most effective. Strict punishment includes increase of amount of monetary sanction, while more detection does protection of whistle blower, qui tam and leniency.
There are factors to be reviewed about diversification of sanctions. It is mainly said that these factors are authorities and execution procedure.
The study suggests sanctions against deviation of the corporation:
Firstly, criminal sanction shall admit of criminal liability of the corporation and criminally punish not by bilateral punishment but by corporate crime only. If you want to maintain bilateral punishment(penalty against employer and employee), the government need to separate a natural person and a corporate. In other words, the fine against the corporation only is needed to elevate. The economic crime cannot forecast income earned in advance. So, it is preferable to settle a slide system of the fine than to determine the statutory maximum. In addition, the amount of fine shall be regularly raised depending upon the inflation. And, the multiplication type of fine system that is put into practice can deprive unfair income by using confiscation regulations to get rid of legislators' will and to set up reasonable standards. Lastly, Equity fines suggested in the United States is not suitable to actual conditions in Korea to be difficult to introduce it. But, the system has advantages, for instance, the management can strengthen internal control, and compensation for the victim can be estimated.
Secondly, Publicity orders are thought to be the most effective to punish corporate crimes in modern society. Adverse publicity may deter corporate crime because corporations generally view their reputation as a valuable asset.
Publicity order may affect consumer confidence in the corporation, especially food and safety. However, adverse publicity is that its impact is uncertain and uncontrollable. it has been described as a "loose canon" because the penalty's impact on the corporation cannot be predicted. So, a publicity sanction should not be used in every case where a corporation is convicted of an offence.
Thirdly, sanction of operation of the corporation includes liquidation, suspension of business operation, cancellation of being listed in stock exchange, incapacitation, limitation on business permitted by the government, etc.
The liquidation is said to be a sanction being equivalent to death sentence of natural person to have great influence upon overall society to allow it after careful inspection. We already have a special surcharge system instead of the suspension of the business in Korea.
However, suspension of business operation can supplement disadvantages of the fine that may have different effects of the punishment depending upon scales of the corporation, and it has high prevention of crimes by threat to potential criminals to be effective to control corporate crimes. Not only cancellation of listing in stock exchange but also prohibition of stock trade that is close to liquidation may have great adverse influence upon the corporation. Therefore, the sanctions shall be applied to principle of proportionality. Limitation upon government permission project having no relation can be understood to be opposite to the principle of unfair connection and to be decided by legislators.
Fourthly, community service order is in dispute, and donation and contribution to the society is also in dispute whether or not it belongs to community service order. The community service order can be applied to the corporation as well and donation and contribution to the society can be community service order. However, the society has not reached agreement on whether or not donation and contribution to the society can be admitted to be community service order. So, The community service order can be sanction at environmental crime. This is because community service order can recover losses and damages of the corporations from point of view of restorative justice. The corporation that shall be responsible for leakage of oil in the ocean can be given community service order for environment protection.
Fifthly, probation order involve a limited period of judicial monitoring of the activities, policies and procedures of corporations with a view to revision and organizational reform. In general, corporate probation orders, if properly targeted at corporations, can be seen as achieving the following goals: prevention, rehabilitation, deterring or punishing offenders. The corporation can also prevent not only legal risks but also crimes.
Sixthly, corporate crimes have not been given order of reparation yet; And, the order can get rid of unfair position that the corporation may occupy in the market, and criminal procedure can do not only criminal sanction but also compensation for losses and damages to litigate efficiently and to protect victims.
The question whether corporations can be punished in a just and effective way cannot be answered with certainty given the primitive state of existing knowledge. Developing new sanctions against corporate offenders presents a greater obstacle. Detailed statutory development of punitive injunctions, community service orders, and other alternative sanctions would require a long term program of reform. This research studied solving the problems of current and overlap with existing sanctions problems. Sanctions shall not be removed to regulate it depending upon each case and to solve in desirable way and to fill a gap. Further studies on sanction of corporations shall be done to discuss more in the future.