論法人犯罪與刑事責任

A Study on Corporate Crime and Criminal Liability

在現代社會中，法人帶來龐大之經濟利益，同時帶有對他人造成損害的可能，尤其是近年頻傳之食品安全或環境污染等公害事件。「法人得否為犯罪主體」？此為世界各國所面臨到之問題。在我國普通刑法中，並無明文規定法人犯罪；但是在附屬刑法中，已有大量對法人處以刑罰之規定，顯然立法者已經承認法人得為犯罪主體。對法人之處罰，最為常見之立法模式為兩罰制，即對法人之負責人處罰之同時，亦對法人處以罰金刑。然而，基於罪責原則，自然人只為自己的不法且有責行為負責，法人當然也只為自己的不法且有責行為負責。我國刑法並未清楚說明法人之歸責基礎，以及如何認定法人之行為，本文認為法人之責任可透過其內部組織失靈建構，並以此為基礎發展法人犯罪之要件。在針對法人犯罪之立法模式上，也必須予以調整。在承認法人犯罪之同時，也應思考如何設計法人的刑事制裁種類，以落實預防法人再犯之目的。法律必須隨著社會發展與時俱進，而不只是墨守成規。為避免與社會脫節，刑法應及時調整既有的法律觀點，以創新的視角思考如何應對新時代的法律問題。只有這樣，刑法才能繼續實現保護法益的功能。

In modern society, corporates bring us huge economic benefits, but it also has the possibility of causing injury to others, especially common nuisance like food safety or environmental pollution occurred recently. ＂whether or a corporate can be a subject of crime＂ is an issue faced by countries all over the world. There is no definition of corporate crime in our main criminal law, but according to our subsidiary criminal law, there are a lot of articles about the punishment to corporates. Apparently, the legislation has clearly recognized that a corporate is a qualified criminal subject. The most common patterns of legislation of corporate criminal are the two penalties. Under the two penalties, natural persons are sentenced to imprisonment, and corporates are fined by regulations at the same time. However, according to the Principle of Culpability, natural persons are only responsible for their own unlawful and culpable behavior, and corporates are only responsible for their own unlawful and culpable behavior. But our criminal law does not specify under what circumstances corporates shall take criminal liability and how to identify the criminal behavior of corporates. This study intends to use theories of ＂organizational fault＂ as the theoretical basis to establish the corporate criminal liability, as well as to make suggestions on the patterns of legislation of corporate criminal and the types of criminal penalties, to achieve the objective of prevention of corporate crime. The law must keep pace with the development of society, not just stick to the rules. In order to avoid being out of touch with the society, the criminal law should adjust the existing legal viewpoints in a timely manner, and think about how to respond to the legal problems of the new era with an innovative perspective. Only in this way can the criminal law continue to realize the function of protecting legal interest.