When can a company be punished for its employee's violation under the dual-punishment clause of the former Road Act? Decision 2009Do5824 on 'due care or supervision'

Question

Former Article 83(1)(iii) of the Road Act punished a person who, without justifiable reason, failed to comply with a demand from the road administration authority, such as a demand to submit related documents, made to check compliance with vehicle operation restrictions, and former Article 86 of the same Act added a dual-punishment clause under which a corporation is also punished where its agent, employee or other worker commits such a violation in connection with the corporation's business. The question is what must be shown for the corporation itself to be punished under that clause, and how that is judged in a particular case.

Decision 2009Do5824 raised the question where a driver whose vehicle was measured as exceeding the height limit drove through a checkpoint without stopping at a road administration official's request to check a possible violation of the height limit, and his corporation was convicted under the dual-punishment clause simply because his act was the offence. The Supreme Court set aside the judgment as to the corporation and remanded the case.

Material to check

The statutes are the former Road Act, as it stood before the whole amendment by Act No. 8976 of 21 March 2008: Article 54(4), Article 83(1)(iii) and Article 86, whose texts are not reproduced here. As the decision describes them, Article 83(1)(iii) punishes non-compliance, without justifiable reason, with a demand from the management authority made to check compliance with vehicle operation restrictions, and Article 86 is a 'dual-punishment clause' providing that where a corporation's agent, employee or other worker commits such a violation in connection with the corporation's business, the corporation is punished as well. Decision 2008Hun-Ga17 quotes the part of Article 86 that applies where the violation is one under Article 83(1)(ii); in that part the fine prescribed in the relevant provision is imposed on the corporation too.

The decisions are Decision 2009Do5824 and the two Constitutional Court decisions it cites, both given on 30 July 2009 by the full bench, Decision 2008Hun-Ga16 (reported in Constitutional Court Reports 154, 1409) and Decision 2008Hun-Ga17 (Constitutional Court Reports 154, 1418). Each held that the dual-punishment clause before it, one in Article 91(1) of the Medical Service Act as wholly amended by Act No. 8366 of 11 April 2007 and one in Article 86 of the former Road Act as amended by Act No. 7832 of 30 December 2005, was unconstitutional because it punished the corporation without asking whether it was at all at fault, contrary to the principle of responsibility drawn from the rule of law and the principle of legality of punishment. Separate and dissenting opinions are recorded in each.

Possible readings

Reading the clause with the principle of self-responsibility in punishment, the decision takes the dual-punishment clause to apply only where the corporation neglected due care or supervision in connection with the business in which the violation occurred. On this reading the clause is not automatic: the employee's violation is only the starting point, and the corporation's own fault must be established.

The decision further states that whether a corporation neglected due care or supervision in a particular case must be judged as a whole, taking account of all the circumstances relating to the violation: the statute's legislative purpose, the degree of expected harm to legal interests from breaching the penal provision, and the reason the dual-punishment clause was made for that violation, as well as the concrete shape of the violation, the harm or result it actually caused, the corporation's business scale, the possibility of supervising the actor or the concrete command-and-supervision relationship, and the measures the corporation actually took to prevent violations.

A third reading follows from the Constitutional Court decisions the decision cites. Where a dual-punishment clause imposes the fine on the corporation without regard to fault, it is unconstitutional under the principle of responsibility; the decision's requirement of neglected due care or supervision is what keeps this clause within that principle.

What the decisions held

Decision 2009Do5824 dismissed the appeal of Defendant 1 and set aside the judgment of the Daejeon District Court of 17 June 2009 (2009No796) in the part concerning Defendant 2, a stock company, remanding that part to the collegiate bench of the Daejeon District Court. It examined the company's liability under the dual-punishment clause of its own motion.

On Defendant 1, the court below had found, on the evidence it properly adopted and examined, that the vehicle he drove was measured as exceeding the height limit and that, although an employee of the road administration authority asked him to stop so that compliance with the vehicle height limit could be checked, he did not stop and drove straight through the checkpoint. The Supreme Court held that his challenge to those findings merely criticised the trial court's exercise of its exclusive power over fact-finding, evidence and evaluation, which stands unless it exceeds the limits of free evaluation of evidence, and so was not a proper ground of appeal.

On the company, the decision held that the court below erred in law on the employer's responsibility under the dual-punishment clause, or failed to complete its inquiry, by punishing the company under the clause solely because Defendant 1's act constituted the offence, without examining the content of the company's duty of care or whether it breached it. It set out what had to be inquired into on these facts: the company's size, such as its number of employees, and its command-and-supervision relationship with its staff; whether the company had given compliance education, teaching staff to observe vehicle operation restrictions and to follow lawful official instructions and demands; whether Defendant 1's record and the other circumstances made it necessary to take particular care or exercise thorough supervision to expect and prevent a violation of this kind by him; and whether the company duly performed such a duty if it was needed. That error clearly affected the judgment.

Points left open

The decision does not say how the listed factors weigh against each other, or what degree of care or supervision a corporation of a given size must meet. It holds only that the question must be inquired into and answered on the circumstances of the case, leaving the assessment to the court on remand.

It leaves open how far the requirement of neglected due care or supervision extends to dual-punishment clauses worded like the ones the two Constitutional Court decisions held unconstitutional. The decision applies the principle of self-responsibility to former Article 86 of the Road Act and cites those decisions, but it does not fix the boundary between clauses that permit such a fault-based reading and clauses that cannot stand.

When to reconsider

We revisit this brief if the judgment on remand states what the company's duty of care required on these facts, if the amended Road Act's corresponding provision, referred to in the decision as Article 100(1), is examined in a later decision, or if a later decision sets out how the listed factors are to be weighed.

Statutes referred to

• 구 도로법 제54조, 제83조, 제86조

Decisions referred to

• 대법원 2010. 2. 25. 선고 2009도5824 판결 · Decision ledger

Verification status

The texts read for this brief were read at the National Law Information Center on 24 October 2026: the decision in its published holdings, summary and reasons, and the two Constitutional Court decisions it cites in their published subject provisions and holdings. The three Road Act articles the decision cites are former versions and their current texts were not given.