Corporate Criminal Liability Research Articles

Corporate Manslaughter: Identifying Criminal Liability Under Nigerian Law

In Nigeria, the concept of corporate criminal liability is slowly catching up with what is obtainable in some jurisdictions where corporations having been recognized as separate entities are criminally liable for the offence of manslaughter. Over a period of time, an increasing number work place fatalities as well as deaths which can be traced directly or indirectly to the activities of corporate organisations. There is an urgent need to examine what the position of the law is with regards to such incidents. This paper therefore seeks to address this gap by considering the criminal liability of corporations and the extent of such corporate liability in the commission of the offence of manslaughter under Nigerian law. In furtherance of this, it attempts an analytical review of the above issues taking into consideration the state of the law in the United Kingdom. The paper concludes by noting that since the offence of corporate manslaughter is not provided for in our Criminal Code, with necessary prescribed punishment, then the Corporate Manslaughter Bill be expeditiously reviewed and passed into law. Keywords: Corporate manslaughter, Criminal liability, Identifying, Criminal Code, Corporate Manslaughter Bill. DOI: 10.7176/JLPG/98-13 Publication date: June 30th 2020

PENERAPAN SISTEM PERTANGGUNGJAWABAN PIDANA BAGI LEMBAGA PERBANKAN DITINJAU DARI TEORI-TEORI SISTEM PERTANGGUNGJAWABAN PIDANA KORPORASI

The economy of the modern society is closely related or even inseparable with the world of banking. It is due to the fact that the main function of banking institutions is basically as an intermediary. However, the fact that the existence of banking institutions is as a corporation does not always have a positive impact. It can also impact negatively in the sense that the banking institution as a corporation becomes a perpetrator of criminal acts or conducts various criminal acts harmful to the public but untouchable by law.The results show that banking institutions (banks) can be categorized as corporations according to the criminal law. Consequently, as a legal subject, the bank is supposedly liable to commit a criminal offense and may be held accountable for criminal acts. The corporate criminal liability system has been legitimized and justified by several doctrines or theories: identification theory, strict liability theory, vicarious liability doctrine, the corporate culture model or company culture theory, doctrine of aggregation, and reactive corporate fault. If it is related to the subject matter, the corporate criminal liability system, as legitimized and justified by the various theories, can be applied to banking institutions. Hence, according to such theories or doctrines, the bank is deemed able to commit criminal acts and bear criminal liability. In addition, the arrangement and application of corporate criminal liability systems for banking institutions may also be justified by several fundamental or principal reasons.However, it is unfortunate that the system of criminal liability for banking institutions as a corporation is not yet applicable. This is because the current banking law is still dominated by the principle of "societas delinquere non potest" and collided with the principle of legality in criminal law. Thus, to overcome various problems that may arise in the future, the banking law needs to be revised by taking into account several things as described further in this paper.

Persoalan Kriteria Batasan Pertanggungjawaban Pidana Korporasi: Tinjauan Terhadap Peraturan Mahkamah Agung Nomor 13 Tahun 2016

The formulation contained in Article 4 paragraph (2) of Supreme Court Regulation (Perma) No. 13 of 2016 concerning Procedures for Handling Criminal Cases by Corporations, especially those related to the element of determining errors in corporate criminal liability, still creates confusion and legal debate in it. As in addition to the element of actus reus (action) which is synonymous with criminal responsibility, there is an element of mens rea (error) which is also very essential and closely related to criminal liability. Thus in this research the study is focused on the problem of the criteria for limiting corporate criminal liability in accordance with Perma No. 13 of 2016 and the theory of corporate criminal responsibility contained in the Perma. The research method used is normative with a statutory, conceptual, and case approach. In the research it was found that the problem of the criteria for limiting corporate criminal liability as stipulated in Perma No. 13 of 2016 lies in the unclear and non strict standards of the criteria to regulate corporate criminal liability and this issue can be viewed from the vicarious liability theory and corporate culture model theory.

Criminal Responsibility on Captain of Commersial Vessel by Act No 17 of 2008 on Voyage

The cruise is one of the nation's transportation system that has a strategic importance and as a liaison and outreach throughout the territory of Indonesia's sovereignty and the potential beneficial role for society, both nationally and internationally. The problems of this study are: 1) Why the skipper commercial vessels should be responsible in case of Vesselwreck, 2) How does the skipper criminal liability due to accidents aboard commercial vessels according to Act No. 17 Of 2008 On Voyage? 3) Is it possible corporate criminal liability in accidents merchant vessel according to Act No. 17 Of 2008 On Voyage?Researchers used the method is legal normative juridical approach and specification in this study were included descriptive analysis.� Sources and types of data in this research is secondary data obtained from the study of literature. Data were analyzed qualitatively. The problems studied by the theory of legal certainty and criminal liability.Based on the results of research that skipper as a leader on the Vessel, is fully responsible for the safety of the Vessel, passengers and cargo during the voyage from the port of loading to the port of destination. Criminal sanctions needed to enforce these responsibilities, and sanctions that have been regulated in Act No. 17 Of 2008 on Voyage Article 244 paragraph (3) and (4), 20 Article 247 and Article 248 shall be punished with imprisonment beyond three (3) years or a fine of Rp 400.000.000.00, - (four hundred million). Obliged to take countermeasures, ask or give aid and spread the news of the Vesselwreck to others. If an accident occurs on board the skipper must be above board and record events such accidents in the logbook and reported to the harbor master. There are still many weaknesses of criminal responsibility in the corporation, among others: when the corporation is declared as a criminal, how the corporation is responsible, the types of sanctions what can be meted out to the corporation, not regulated penal substitute fines are not paid by the corporation and unregulated the offense to corporation. Because implementation guidelines in the draft penal Code there is renewal in the subject field of the offense and criminal liability system.Keywords: Commercial Vessels; Skipper; Criminal Liability.

Formulation Policy Regarding the Smuggling of Lobster Seeds in Indonesia

This paper analyzes how formulation policy of lobster seeds smuggling regulated in Indonesian law to optimize the effectiveness of illegal fishing enforcement, considering penal policy is the basis of criminal law operationalization. This research uses both statute approach and conceptual approach as legal research methods to analyze the issued legal problem. Fishery law in Indonesia regulated in Law No. 45 of 2009 amending Law No. 31 of 2004 concerning Fishery, especially Articles 88 and 16 paragraph (1) which cover the formulation policy of lobster seeds smuggling enforcement. This study will be analyzed into three aspects which are the conduct (the criminal offense), criminal liability, and sentencing system. The result shows that law enforcement regarding the smuggling of lobster seeds in Indonesia is ineffective due to the nonexistence of corporate criminal liability in the fishery law and its sentencing system is lack of both the specific minimum penalty regulation and the penal measures as criminal punishment. However, the draft of the fishery law has already set corporate criminal liability; hence it also regulates the penal measures, in the form of secondary sanctions. Nevertheless, instead of enacting the specific minimum penalty, the draft only determined the maximum penalty as well.
 Keywords: Formulation Policy, Fishery Law, Lobster Seeds Smuggling.

An Obligation of Corporate Criminal Liability in the Case of Non-Implementation of Occupational Health and Safety (OHS)

Cases of industrial accidents occur as a result of corporations ignoring or not caring about the terms and conditions of occupational health and safety (OHS) according to Law Number 1 of 1970 concerning Occupational Safety (UUKK). The purpose of this research is to analyze the responsibility of corporate criminal liability if the OHS protection of workers/laborers is not implemented in the workplace. The research method used is legal research (normative juridical) with a statutory approach. The results of this study conclude that corporations must be liable for criminal liability for OHS workers' protection on the grounds that due to the bitter history of the conditions of Indonesian labor protection since the colonial era, protection is a concretization of Pancasila values, neglect of OHS protection is a violation of workers human rights at work, neglect of workers protection as an abuse of economic power and as a form of corporate crime. For the future, expectations this research contributed to knowledge and stakeholders aware of the importance of corporations burdened with criminal liability in the event that the protection of workers. Of personal skills, expected characteristics include the ability to protected workers and the ability to perform the renewal of the formulation of corporate criminal liability policies in accordance with the development of corporate punishment and living values in society.

Concept of Restitution Application as a Form of Corporate Criminal Liability in Law Enforcement towards Human Trafficking Criminal Act

This research aims to analyze: (1) the corporate liability as a law subject in terms of human trafficking criminal act; and (2) the concept of restitution application as a form of corporate criminal liability in the case of law enforcement towards human trafficking criminal act. This research is categorized as normative legal research through the statue and conceptual approaches. The result of the research found that: (1) in terms of criminal law, both seen from the Law of Human Trafficking or theories of corporate liability, corporate is one of law subject in terms of human trafficking criminal act whose liability can be asked regarding human trafficking criminal act. The corporate liability which conducts human trafficking criminal act can be determined through the fulfillment of general criminal liability terms (subjective terms) including the presence of liability, the presence of guilt both intentionally and negligence, and the absence of reasons to omit the criminal law. The form of liability of corporate criminal in terms of human trafficking criminal act can be decided precisely using vicarious liability; and (2) restitution application concept, as a form of corporate criminal liability in law enforcement towards the human trafficking criminal act so that justice principle, legal certainty and benefit for the victim of human trafficking. Therefore, the concept offered is first, fulfillment of material rights. Second, the availability of legal protection accompanied with its implementing which is a very urgent matter. Third, the availability of structure (in the form of institution/entity) and infrastructure is an essential thing in process managing, deciding and executing the human trafficking criminal act.

Criminal Liability in Environmental Crimes Committed by Corporations after the Supreme Court Regulation Number 13 of 2016 at Indonesia

Corporations are organized groups of people and / or properties, both in the form of legal entities or non-legal entities. In relation to the corporation as a legal subject in environmental crime, it is formulated in Article 1 number 32 of the Law Number 31 Year 2009 about Environmental Protection and Management, each person is an individual or business entity, both legal entities and non-legal entities. The context of corporate crime in the environment is still not solid enough to ensure corporations in criminal sanctions because there is no legal basis regarding the procedures for handling environmental crimes committed by corporations. The Supreme Court Regulation Number 13 of 2016 concerning Procedures for Handling Corporate Crime provides a basis for enforcement of criminal law, then the purpose of writing this article is to find out the form of criminal liability for corporations for environmental crimes and legal consequences after the Supreme Court Regulation Number 13 of 2013.The type of research used is legal research which is included in the normative legal research typology where this study focuses on positive legal norms in the form of legislation. The theory used by the author in analyzing is using the theory of criminal liability which is based on the principle of legality. The conclusions include: criminal sanctions that can be applied to corporations based on Article 4 of Supreme Court Regulation Number 13 of 2016 are in the form of criminal fines, additional crimes, and disciplinary actions except prisons and confinement. Last, the legal consequences of the application Article 25 Supreme Court Regulation Number 13 of 2016 with the principal criminal is a criminal fine and then the criminal added according to the law governing environmental criminal acts is the Law Number 32 Year 2009 concerning Environmental Protection and Management.

Theoretical and Conceptual Reflection Regarding Corporate Criminal Responsibilities Influencing the Formulation of Laws

In Indonesia, the development of the corporation as the subject to criminal acts takes place outside the Criminal Code, regulated in special legislation. While the Criminal Code itself still adheres to the subject of criminal acts in the form of people, the corporation (juridical person) appears as a subject that can commit a crime and should also be accountable in criminal law. However, this condition has not been realized concretely in our Criminal Code. The formulation policy regarding corporate criminal liability for victims of corporate crime that exists or is currently in force has not been able to realize the corporate criminal liability. Although there are sanctions that can be imposed on corporations, most of these provisions only protect potential victims and are not responsible for actual or real victims. In other words, the current formulation policy has not been able to ensnare and impose criminal sanctions on corporations who commit crimes, especially criminal sanctions which are oriented to the fulfillment or restoration of victims' rights in the form of compensation payments after the crime. This paper will discuss the position and the responsibility of the corporation as a subject of criminal law in Indonesia and analyze policy formulation of the Criminal Code and the draft of the Criminal Code that related to corporate responsibility as a legal subject.
 Keywords: Corporate Criminal Responsibilities, Criminal Law, Corporate Responsibility.

THE CORPORATE AGENT IN CRIMINAL LAW – AN ARGUMENT FOR COMPREHENSIVE IDENTIFICATION

AbstractWe use doctrines of identification to explain how corporations may commit criminal offences in their own right, but current versions thereof have several shortcomings. Here, I suggest that reformulating the identification doctrine to treat all corporate officers and employees as embodying the corporation when acting within their real or ostensible authority, might remedy these shortcomings. Arguments against the resulting expansion of corporate criminal liability are unconvincing, especially when juxtaposed with the criminal law's response to similar arguments made on behalf of natural persons. This may indicate that we should also moderate the criminal law's harshness towards natural persons.

The Concept of Corporate Crime in the Indonesian Criminal Law System

This study aims to find answers to the problem “How is corporate criminal liability as a corporate criminal offense? “The type of research used in this study is normative juridical (legal research), which is research focused on examining the application of rules or norms in positive law in force. Corporations act and act on the interests of corporations through a systematic management structure, based on this view and supported by several theories such as Strict Liability and Vicarious Liability, corporations can be subject to criminal penalties. Corporations are liable because without corporate criminal liability, it is not impossible for a company to avoid criminal regulations and not only its employees are sued but also directors, commissioners, shareholders because they have committed a crime which is actually a mistake of business activities carried out by the company.

A Critical Study on Corporate Criminal Liability with Special Reference to US and Indian Laws

A company or corporation, enjoys a separate existence from its owners and from those who manage its day-to-day affairs. Although the separate legal personality of a company has been a well-established concept, whether a company's wrongdoing can be subject to the sanction of criminal law has been a vexed question. While it is trite law that the individuals managing a company may be liable under criminal law for wrongful acts carried out by them, the thornier issue pertains to whether the acts of such managers can be attributed to the company (through its separate legal existence) thereby making it liable to the consequences of an offence under criminal law.

Revealing the unexplained wealth in Indonesian corporation

PurposeThe purpose of this paper is to analyze the unexplained wealth inside the corporation and to initiate and apply unexplained wealth order in the Indonesian corporation based on the Indonesian legal system and prevailing laws. An effective tool needs to be implemented because of the facts that numerous corporate illegal activities lead to economic and financial crime. Meanwhile, there are difficulties to implement the corporate criminal liability. Non-conviction-based asset forfeiture will be a way out to deal with the current condition.Design/methodology/approachThis paper explores and analyzes the Indonesian legal system, particularly a non-conviction-based asset forfeiture for corporate illegal activities. This paper is based on the research paper conducted with the legal normative approach.FindingsNon-conviction-based asset forfeiture through unexplained wealth order will be an effective tool and a revolutionary pattern in the crime prevention perspective dealing with corporate crime. Corporate criminal liability in anti-corruption regime can be viewed from two perspectives by combining and integrating crime prevention approach as well as the repressive approach. The Indonesian Supreme Court Regulation number 13 of 2016 is a breakthrough in the criminal justice system to redesign case handling procedure toward corporate crime. It needs to be supported by precise asset forfeiture law. Furthermore it is necessity to strengthening and built corporations with moral and ethical business values.Practical implicationsThis paper can be a source to explore the unexplained wealth that can occur in the corporation and the way to overcome it through unexplained wealth order and non-conviction-based asset forfeiture.Originality/valueThis paper contributes by initiating a non-conviction-based asset forfeiture, which is implementing the in rem proceeding, to make sure the crime does not pay and the victim and society suffer less because of the corporate crime.

Revisiting the Possibility of Corporate Criminal Responsibility in International Criminal Law: Amending Article 25 of the Rome Statute to Include Legal Entities Within the Jurisdiction of the ICC.

The influence of corporations is omnipotent in our current society. They have great influence over economy, lawmaking, media, etc. Especially, since governments are increasingly outsourcing tasks to multinational corporations. Nonetheless, with great power comes great responsibility. This means corporations are also increasingly involved in Human Rights abuses, sometimes amounting to international crimes. Paradoxically, there is no international body adjudicating over corporate criminal responsibility at the moment; this constitutes an accountability gap. However, there has been an indication of more openness towards corporate criminal liability in international law, and more specifically the inclusion of corporate entities within the jurisdiction of the ICC. Therefore, the research question of this paper is “Is the current legal climate willing and ready to include legal entities within the jurisdiction of the ICC?” Corporation are involved in international crimes in several ways; direct, indirect or passively. Examples include purchasing illegally exploited resources and providing weapons to armed parties. Currently, there are only some soft-law instruments, non-binding to corporations, to tackle these problems. Besides that, article 25 of the Rome Statute only allows for the ICC to judge over individual corporate officers. Not holding all actors involved responsible can be remedied by including corporations within the jurisdiction of the ICC. The legal climate has not always been accepting towards the inclusion of corporate criminal liability, but has been changing over the last couple of years, by showing an increasing interest in corporate criminal liability. This means the possibility of an amendment of Article 25 of the Rome Statute has become more likely. If the ICC were to have jurisdiction over corporate entities, it would eliminate the problem of States’ reluctance against prosecuting corporations due to economic and political interests, taking into account the grave, trans-boundary and collective nature of international crimes. Nonetheless, an amendment would require extensive discussion and the overcoming of potential hurdles. However, this does not mean an amendment to the Rome Statute is impossible.

Corporate Criminal Liability in the Collapse of Bank Century in Indonesia

Corporate Criminal Liability in the Collapse of Bank Century in Indonesia

Corporate criminal liability on environmental crimes in Vietnam

From 00:00 on January 1, 2018, all environmental criminal acts of commercial entities are prosecuted for criminal liability. In order to investigate criminal liability for corporate legal entities, up to now, Vietnam have Criminal Code 2015, Criminal Procedure Code 2015 and Law on Execution of Criminal Judgment 2019. However, the competences, order and procedures of judgment excution for corporate legal entities that environmental commit crimes are still controversial and has been urgently discussed. The Penal Code 2015 on corporate legal entities has been in effect for nearly 5 years, but in fact up to July 2020, there has not been a commercial entity prosecuted and tried or excuted yet. The difficult problem is the penalties applied to legal entities different in the nature, order, procedures and ways of conducting compared with individual. This paper introducing the new regulations about the criminal liability on corporate entities for environmental crimes in Vietnam Criminal Code 2015 and analyze and point out some challenges, proposes some suggestions in Vietnam execution of criminal judgments.

The Quest to Prosecute and Punish International Crimes by the African Court of Justice and Human Right: Myth or Reality?

The Quest to Prosecute and Punish International Crimes by the African Court of Justice and Human Right: Myth or Reality? Akpoghome Theresa U (PhD), Nwano Theophilus C (PhD) Abstract This paper examines the proposed African Court of Justice and Human Right which is expected to be the main judicial organ of the AU. It looks at the reasons for the establishment of the court which includes but not limited to the failures of the national, hybrid and the ad hoc courts in the region to meet the demands of justice in prosecuting cases of international crimes. The merged court has an expanded jurisdiction covering crimes within ICC‟s jurisdiction and other crimes peculiar to Africa. This move is seen as ambitious and contentious as it is not favorable to the role of the ICC. The paper further examines the procedures of the proposed court as contained in the courts Statute and observes that there exists some gaps which must be filled if the court will achieve its goals. The paper also observes that the statute of the court makes provision for corporate criminal liability of corporation which is a good innovation as this is one crime that national legislations have not been able to address. The paper also provides a brief overview of national, hybrid and ad hoc international criminal trials in Africa and argues that the Malabo instrument is an important and alternative means of attaining justice in the region to improve on the errors of the earlier courts. It further examines the advantages of the proposed court and possible drawback that the court may face when it is established. Based on the findings, the paper concludes that the proposed court will bring justice nearer home to the victims, but will fail if the AU lacks the muscle to address the challenges noted. Finally, the paper recommends, that the subjecting the practice of universal jurisdiction to the provisions of national immunity and consent of the accused will make prosecution of crimes in Africa ineffective. Full Text: PDF DOI: 10.15640/jlcj.v8n2a7

A Comparative Analysis of Corporate Criminal Liability in Nigeria and Other Jurisdictions

This paper attempts a comparative analysis of corporate criminal liability in Nigeria, the United Kingdom, the United States and India. Candidly, it is trite that the law clothes a company with personality such that its rights and duties are distinct from those of its members, because a company is a legitimate entity. Under common law, companies are responsible for criminal offences subject to certain exceptions such as robbery, kidnapping, murder and rape. No mental state was required in this regard and the punishment that was then practicable was a fine that could simply be levied on a corporation. Presently, in offences involving proof of mens rea, companies will effectively be held liable by imputing the state of mind of employees and the directors who are the alter ego and directing minds of the corporation. While this is the position in Nigeria, the United Kingdom and the United States. India, however, is not in pace with the developments as well as they do not make corporations criminally liable and if or when they do, no other punishment is imposed on them except fine. The paper concludes by stating unequivocally that Nigeria should hold on to the alter ego doctrine due to its clarity and predictability but it should infuse the aggregation theory (collective knowledge) developed in the United States because that makes it easier for the prosecution of companies as against the single lane approach (the alter ego doctrine) which requires that companies should take responsibility for the persons having decision making authority for the policy of the corporation rather than the persons implementing such policies.

Corporate criminal liability in terms of attributability concept

In this paper the authors analyse the introduced model of genuine corporate criminal liability in the Slovak Republic. Genuine corporate criminal liability is described in a more simplified way through the obligatory elements of corporate criminal liability. The authors also focus and conclude on practical reflections about potential excesses in the enforcement of the corporate criminal liability.

소위 ‘기업살인법’ 도입 논의의 노동법적 함의

On the point of view that corporation which recognized on juristic personality by law does not have the physical or the spirit to commit a criminal act, it is not natural to impose the criminal liability of corporation. However, considering the reality of the modern society in which the corporation is responsible for most of its production activities, the criminal liability should be imposed on the corporation and its managers to properly prevent any infringement on life and body caused by the activities of the corporation. Law theory is not meaningful in itself, but should be able to play a role in solving social problems. An institutional mechanism is necessary to hold a corporation accountable for violations of life and body caused by business activities.