Woongjae Kim, Criminal Jurisdiction over Foreign Corporations in UK⋅US Law, Seoul Law Journal, Vol.65, No.2(2024.6), pp.1-64.
<Abstract>
Can a foreign corporation, incorporated and conducting business wholely outside South Korea, be held criminally responsible under South Korean law for the actions of its employees inside South Korean territory? Whether South Korean courts can exercise criminal jurisdiction in such a case depends on whether the case falls under the scope of applicability, or the ambit, of South Korean criminal law. The ambit of South Korean criminal law is primarily defined by the territorial principle. According to the territorial principle, the applicability of South Korean criminal law relies on whether the location of the crime is inside Korean territory. The location of the crime, in turn, is determined by where events that constitute the substantive elements of the crime took place.
The question of criminal jurisdiction over foreign corporations, therefore, lies at the intersection of substantive rules that govern corporate criminal liability and the rules that determine territoriality. Since the United Kingdom and the United States have a long history of recognizing corporate criminal liability and have traditionally endorsed only the territorial principle as the basis of criminal jurisdiction, a comparative review of how both countries have dealt with the problem of criminal jurisdiction over foreign corporations can provide valuable insights.
Regarding the scope of the territorial principle, there is a convergence of views between UK and US law that territorial jurisdiction can be asserted if a substantial or focal part of the offense occurs within the territory. As for corporate criminal liability, both countries generally use the method of imputing the conduct of natural persons to the corporation. For such imputative liability, courts of both UK and US seem to hold that territorial jurisdiction over the corporation is established if the criminal conduct of the natural person falls within the territorial ambit of the law. For a different version of corporate criminal liability where negligence of senior management or organizational negligence is required as an additional or independent element, there is a tendency of courts to apply domestic law when the result of the criminal conduct occurs within the territory.
Under Korean law, a corporation is responsible for a crime committed by its employee when (1) an employee commits an offense within the scope of his or her employment; (2) the corporation failed to exercise due diligence to prevent the employee from committing the offense; and (3) there is a causal relationship between the corporation’s failure to exercise due diligence and the commission of the offense. It is a form of criminal liability that requires negligence on the part of the corporation in addition to a natural person’s criminal conduct. The employee’s criminal conduct constitutes the result element of the corporation’s offense, and therefore the location of the employee’s conduct becomes the location of the result of the crime. Therefore, when an employee of a foreign corporation commits an offense inside South Korean territory, South Korea should be able to exercise territorial jurisdiction over the corporation, based on the fact that the result element of the offense occurred within its territory.
<Keywords>
Foreign Corporation, Criminal Jurisdiction, Ambit of the Criminal Law, International Criminal Law, Territorial Principle, Corporate Criminal Liability
Woongjae Kim, Criminal Jurisdiction over Foreign Corporations in UK⋅US Law, Seoul Law Journal, Vol.65, No.2(2024.6), pp.1-64.
<Abstract>
Can a foreign corporation, incorporated and conducting business wholely outside South Korea, be held criminally responsible under South Korean law for the actions of its employees inside South Korean territory? Whether South Korean courts can exercise criminal jurisdiction in such a case depends on whether the case falls under the scope of applicability, or the ambit, of South Korean criminal law. The ambit of South Korean criminal law is primarily defined by the territorial principle. According to the territorial principle, the applicability of South Korean criminal law relies on whether the location of the crime is inside Korean territory. The location of the crime, in turn, is determined by where events that constitute the substantive elements of the crime took place.
The question of criminal jurisdiction over foreign corporations, therefore, lies at the intersection of substantive rules that govern corporate criminal liability and the rules that determine territoriality. Since the United Kingdom and the United States have a long history of recognizing corporate criminal liability and have traditionally endorsed only the territorial principle as the basis of criminal jurisdiction, a comparative review of how both countries have dealt with the problem of criminal jurisdiction over foreign corporations can provide valuable insights.
Regarding the scope of the territorial principle, there is a convergence of views between UK and US law that territorial jurisdiction can be asserted if a substantial or focal part of the offense occurs within the territory. As for corporate criminal liability, both countries generally use the method of imputing the conduct of natural persons to the corporation. For such imputative liability, courts of both UK and US seem to hold that territorial jurisdiction over the corporation is established if the criminal conduct of the natural person falls within the territorial ambit of the law. For a different version of corporate criminal liability where negligence of senior management or organizational negligence is required as an additional or independent element, there is a tendency of courts to apply domestic law when the result of the criminal conduct occurs within the territory.
Under Korean law, a corporation is responsible for a crime committed by its employee when (1) an employee commits an offense within the scope of his or her employment; (2) the corporation failed to exercise due diligence to prevent the employee from committing the offense; and (3) there is a causal relationship between the corporation’s failure to exercise due diligence and the commission of the offense. It is a form of criminal liability that requires negligence on the part of the corporation in addition to a natural person’s criminal conduct. The employee’s criminal conduct constitutes the result element of the corporation’s offense, and therefore the location of the employee’s conduct becomes the location of the result of the crime. Therefore, when an employee of a foreign corporation commits an offense inside South Korean territory, South Korea should be able to exercise territorial jurisdiction over the corporation, based on the fact that the result element of the offense occurred within its territory.
<Keywords>
Foreign Corporation, Criminal Jurisdiction, Ambit of the Criminal Law, International Criminal Law, Territorial Principle, Corporate Criminal Liability