Corporate Criminal Responsibility Research Articles

Legal Politics Of Corporate Responsibility In Indonesia’s Criminal Law

The purposes of this research are to know the decisionpublic policy by the government-related corporate responsibility in Indonesia’s Criminal Law, to know the corporate responsibility special laws in Indonesia, and also the mechanism to find out the corporate’s fault. The applied method in this research is normative-legal research. From the research result, it can be concluded that the Government of the Republic of Indonesia has to determine the latest version of Indonesia’s Criminal Law or revised several laws related to corporate criminal responsibility. In Indonesia’s Criminal Law, corporate criminal responsibility is not recognized, but the corporate responsibility is dispersed in special laws such as Law on Economy Crimes and Consumer Protection. To determined the corporate fault was taken from the manager or member of Board of Directors.

Application of Republic of Indonesia Supreme Court Regulation No. 13 of 2016 Concerning Procedures for Subscribing to Criminal Cases by Corporations in Corporate Criminal Responsibility in Indonesia Based on the Decision of the Central Jakarta District Court Number: 94 / Pid.Sus-TPK / 2017 / PN. Jkt.Pst

Corporations at this time are no longer just subjects of ordinary law, but corporations are now a forum for corruption. Corporate criminal sanctions in Decision Number Number: 94 / Pid.Sus-TPK / 2017 / PN.Jkt.Pst the judge imposes criminal sanctions not only on the accused individual but also imposes criminal sanctions on the corporation PT. Duta Graha Indah (PT.DGI). In 2009-2010 PT. DGI through its main Director at that time made an agreement in the arrangement of the development projects for special infection hospitals and tourism at Udayana University in the 2009 and 2010 fiscal years in order to win PT DGI as the implementation of work (partners). Problems in ensnaring corporations against cases of corruption committed by corporations are still difficult to implement in Indonesia. So that the judge's consideration in the decision becomes the basis for making a decision for the judge in imposing criminal penalties on the corporation PT. DGI. The research method used is normative juridical. From the results of the study, it can be concluded that judges based on vicarious criminal liability assess the existence of a working relationship in which the mens rea drawn in the defendant knows corruption but is passive with actus reus drawn from the actions of the head of the PT. Other DGIs to coordinate with other parties for and on behalf of corporations that cause illegal acts. The judge considered the mistakes imposed on the corporation were mistakes made by the management so that the corporation could be held responsible for criminal acts of corruption that had been committed.

Crimes Committed by Legal Persons: A Comparative Sino-German perspective

In Germany, the notion of corporate criminal liability has attracted the attention of lawyers, scholars, and recently of politics. At present, legal persons are not criminally responsible but may only receive administrative fines under Section 30 of the Regulatory Offences Law. In light of recent scandals involving large business enterprises, efforts are under way to expand the liability of legal persons for misconduct, possibly leading to the introduction of criminal sanctions. In China, corporate criminal responsibility for certain offenses (unit crimes) were adopted in 1997 and has been practiced ever since. Here, both the unit and its responsible members are punished if a unit crime has occurred. In addition, administrative agencies may impose administrative sanctions and measures on the unit. Since the practical and legal problems appear similarly in the German and Chinese systems, a brief review of the Chinese experience may be helpful for the German reform process.

Corporate crime, the lawmaker's options for corporate criminal laws and Luhmann's concept of “useful illegality”

The article contributes to the current discussion on whether and how to introduce corporate criminal responsibility to Germany. The article focuses on the interrelation between possible designs of a future corporate criminal law and the explanatory model of the "early" Niklas Luhmann (1964) on the existence and functionality of "useful illegality" (“brauchbare Illegalität”) in organisations. The author presents the alternatives for penal legislature, discusses the original concept of Luhmann and debates his recent "rediscovery" and popularisation in the context of publicly debated corporate misconduct. The key question is whether, for reasons of efficiency, the law should allow companies leeway for useful deviant behaviour. As a rule, severe violations of state law are neither desirable nor useful. However, the “uselessness” depends on the “accounting period”. Rather, the author takes the view that law itself endeavours as far as possible to systematically implement socially beneficial behaviour in the binary code "right-wrong".

PENERAPAN SAKSI PIDANA KORPORASI PADA BANK DAN IMPLIKASINYA

A criminal act by corporation is criminal offense that can be asked for criminal liability to the corporation in accordance with the laws and regulations concerning the corporation. Banks as corporate legal entities can be prosecuted before the law and tried if in carrying out their business activities the bank is suspected of committing a crime that is threatened with criminal sanction, including committing a crime of money laundering or corruption. Corporation can be punished to pay fine penalties and other additional penalties such as dissolution or revocation of business licenses. As a trust-based financial institution, if a bank commits a crime, the impact caused by the crime is not only detrimental to the bank itself, damages the reputation of the bank but also harms the community of depositors and other parties responsible for handling bank resolutions. Looking at the impact, the application of corporate criminal responsibility to banks must be carried out carefully and selectively. If these sanctions happen to a large-scale bank (systemic bank), it can be multiple effects cause.

Sejarah dan Perkembangan Pertanggungjawaban Korporasi

Corporate criminal responsibility has a difference in its development between countries with the common law system and those with civil law system. This is also, no exception in Indonesia. Indonesia as a Dutch Colony, which adheres to the civil law system which carries the adagium "deliquere non potest university," where corporations cannot be convicted. By using a normative approach, this article discusses about corporation as subject of criminal law which regulated outside the Criminal Code (KUHP). In Pratice, there have been several cases that punish corporations who commit criminal acts such as corruption. The finding of this article is court in Indonesia, especially corruption court are more likely to use the doctrine of vicarious liability as in common law countries. Contrary, with the conception in the Draft Criminal Code (RKUHP) that is more likely to use identification doctrine on corporate responsibility.

Formulasi Pertanggungjawaban Pidana Korporasi Dengan Adanya Peraturan Mahkamah Agung No. 13 Tahun 2016

The development of the concept of corporation not only had a positive impact but also followed by the development of crimes that could be done using corporations or also called corporate crime. Many laws and regulations that have accommodated corporation as legal subjects that can be asked for corporate criminal responsibility have not been followed by regulations governing procedures or procedures for examining corporations as perpetrators of criminal acts. This is very necessary because of the differences in characteristics between corporate crime and other conventional crimes. Responding to legal requirements that have been very urgent and there are distinct challenges for law enforcers because of the different treatment, then the Supreme Court issues Supreme Court Rules No. 13 of 2016. The problem regarding the procedure for corporate sentencing involved in criminal offenses is not only talking about material law but also about formal law or its procedural law. One of the aims and objectives of its formation is to fill the vacuum of criminal procedural law which until now has not regulated the procedures for handling corporations that carry out criminal cases. Supreme Court Rules No. 13 of 2016 is a legal rule aimed at assisting law enforcement officials in handling criminal cases with corporate actors and/or their administrators. This then became one form of thinking that could be the basis for assisting in the formation of criminal procedural laws governing corporations.

Doing business right? Private actors and the international legality of economic activities in occupied territories

In recent years the question of the lawfulness of economic activities in occupied territories has emerged as a matter of significant debate in international law. A number of non-governmental organizations and scholars maintain that international law prohibits economic relations with occupying states and this extends to territories under their control. Still, the legal framework governing the lawfulness of such relations remains unclear. In light of this, the present contribution aims to explore the lawfulness, under international law, of economic dealings by third party private actors in territories under prolonged occupation. It is argued that, since corporations are not direct holders of international law obligations, the duties of non-recognition and non-assistance do not extend to their activities. Similarly, it is shown that the development of a law of individual criminal responsibility in international law has not yet been accompanied by a regime of corporate criminal responsibility, thereby affirming the absence of any formal international normative dimension of transnational corporate activity. In the light of the inadequacy of traditional legal instruments to regulate corporate activity in occupied territories, the article finally turns to one of the main soft-law instruments governing such activity, namely the 2011 UN Guiding Principles on Business and Human Rights (UNGPs). The article provides some concrete examples of how the UNGPs have been successful in dissuading companies from carrying out economic activities in the occupied Palestinian territories and in the occupied Western Sahara. The main argument advanced here is that, in the absence of a hard regulatory framework governing corporate activities, soft-law instruments, such as the UNGPs, show great potential in bringing about a change of corporate conduct towards occupied territories. More fundamentally, this practice will hopefully lead to the adoption of a hard instrument on the topic.

Liberals vs. Romantics: Challenges of an Emerging Corporate International Criminal Law

Holding bystanders and corporate agents accountable for international crimes is often at the periphery of international criminal justice. Based on its liberal foundations, international criminal law has traditionally been strongly centered on individual agency. In the industrialist cases after World War II, individual criminal responsibility was used to demonstrate and sanction corporate involvement in crime. Ideas of corporate criminal responsibility have been voiced in the post-war era and in the context of the negotiations of the Statute. In recent years, they have witnessed a renaissance in several contexts: the jurisprudence of the Special Tribunal for Lebanon, the Malabo Protocol of the African Union and the Draft Articles of the International law Commission on Crimes Against Humanity. This contribution examines the strengths and weaknesses of individualized and collective approaches towards corporate wrongdoing. It argues that the way forward requires less 'romanticism' and more realism. The appropriate space of corporate criminal responsibility needs to be defined better. The concept is still most developed in domestic jurisdictions. Its role at the international level is likely to remain modest. The main challenge is to develop the interplay between individual and collective responsibility, and to assess more carefully in what areas and in what forums collective responsibility may be pursued best.

Corporate Criminal Responsibility for Human Rights Violations: Jurisdiction and Reparations

Modern prosecutions at international criminal courts and tribunals have demonstrated that the resources available for reparations and restitution from individuals convicted of core international crimes is grossly insufficient to meet even basic restitutionary needs. Most of the wealth that might exist as a result of international crimes is likely to be in the hands of corporations or other artificial persons who have gained property and income through human rights violations. None of the international criminal courts and tribunals (ICCTs) has adjudicative jurisdiction over artificial persons of any sort, so that any progress on restitution and restorative justice must come through national tribunals. This applies to both core international crimes and the broader category of human rights treaty crimes which are outside the authority of ICCTs. Many obstacles to reparations for human rights violations related to business activities arise from the international and national laws of jurisdiction. Rules of prescriptive, adjudicative, and enforcement jurisdiction combine with substantive rules of criminal law to make adequate reparations for human rights related business crimes difficult to achieve. The Guiding Principles on Business and Human Rights (the “Ruggie Principles”), adopted by the United Nations Human Rights Council, address prevention, monitoring, and remediation of business participation in human rights abuses of all kinds. Application of several of the Principles can help states provide a jurisdictional framework for reparations for business-related human rights violations. There are some signs of progress in recent decades. More states are now willing to exercise criminal jurisdiction over corporations in the past. New human rights treaties require states to hold artificial persons liable for violations, criminally or otherwise. Objective territorial jurisdiction (sometimes called “effects” jurisdiction) is ever more clearly permissible when outside activity directly causes criminal results in states. Finally, the rule against enforcing criminal law judgments across borders is beginning to decline, making the shielding of assets from claims for restitution and restorative justice through criminal proceedings much more difficult. Nonetheless, many obstacles to transnational enforcement of criminal judgments remain. Given trends in the international law of jurisdiction, it may turn out that civil judgments of restitution and reparation will be easier to obtain and enforce than criminal judgments. This is a Report for “Prosecuting Corporations for Violations of International Criminal Law: Jurisdictional Issues,” Section 4 of the XXth Association Internationale de Droit Penal/International Association of Penal Law Congress.

‘Too Scared to Prosecute and Too Scared to Jail?’ A Critical and Comparative Analysis of Enforcement of Financial Crime Legislation Against Corporations in the USA and the UK

This article has two aims. First, it critically considers the responses towards tackling corporate financial crime in the USA. Secondly, it analyses the UK’s efforts to tackle corporate financial crime and then compares them with the USA. The USA presents an interesting case study for this article due to its robust and aggressive stances towards tackling financial crime and also because it is one of the largest financial markets. Similarly, the UK has adopted a strong stance towards tackling financial crime and is also regarded as one of the most important global financial centres. Therefore, by comparing the two contrasting approaches towards corporate financial crime, it is hoped that the best practices from each country could be adopted. The first section of the article concentrates on the judicial response towards corporate financial crime in the USA and it then moves onto highlight and critique the decision of the US Department of Justice (DoJ) to alter its enforcement policy by moving away from indicting corporations to using deferred prosecution agreements (DPAs). Here, the continued use of DPAs is questioned because they have had a limited impact on the future conduct of corporations who are persistent reoffenders. The article sets out a wide range of arguments for why DPAs should not be the enforcement weapon of choice for the DoJ. The final part of this section critiques the ability of law enforcement and financial regulatory agencies to impose financial penalties and bring civil actions for a wide range of financial crimes under the Financial Institutions Reform, Recovery and Enforcement Act 1989. The second part of the article concentrates on the UK and concisely assesses the doctrine of corporate criminal liability, thus identifying the contrasting judicial approaches with the USA. The next section discusses the use of DPAs for breaches of the Bribery Act 2010 by the Serious Fraud Office. The section advocates that in the UK, DPAs must be utilised for a broader range of financial crime offences, thus drawing on the US model. The penultimate segment of the article identifies and comments on several alternative enforcement measures which could be used to counteract the limitations of the doctrine of corporate criminal responsibility in financial crime cases. This distinctively includes the Financial Conduct Authority’s Senior Managers and Certification Regime, its ability to impose financial penalties and to revoke the authorisation of a regulated corporation. The article concludes by making a number of recommendations and suggested reforms, thus further developing the scope of this research.

Уголовно-процессуальные вопросы коллективной уголовной ответственности в Республике Польша и перспективы совершенствования польского законодательства о коллективной уголовной ответственности

The article explores the criminal procedure aspects of collective criminal liability in the Republic of Poland and includes an analysis of the relevant provisions of Polish legislation, including the Act on the Liability of Collective Entities for Acts Prohibited under Penalty of 28 October 2002 and the Criminal Procedure Code of the Republic of Poland. The publication contains the data on the practice of making collective entities in the Republic of Poland criminally liable. It reflects Polish specialists’ critical assessments of the corporate criminal responsibility form implemented in Poland, and considers the available proposals to improve Polish law regulating collective criminal liability.

TANGGUNG JAWAB PIDANA KORUPSI RUMAH SAKIT

Hospital is an institution that provides health services both preventive, promotive, curative and rehabilitation to the public at large. In addition, the hospital is a solid institution of capital, technology and human resources, thus potentially causing problems both internally and externally. Hospitals were previously regarded as social institutions that provide medical assistance to the wider community, but at the present time the position of hospitals has undergone a change, formerly in the form of social institutions becoming corporate institutions that lead to the dominant health services seeking economic benefits. Problems that arise in the present moment, when a medical error occurs by a doctor or health care provider, the patient only demands a criminal doctor and never asks for corporate criminal responsibility. With this issue that makes the author to interested in assessing whether the hospital can be held accountable corporate criminal. So in the study of the authors obtained a conclusion that the hospital can be asked for criminal responsibility because the hospital as a corporation is a legal subject that has rights and duties as well as humans. In addition the legal doctrine of Vicaroius Liability and Strict Liability clarifies that the employer / employer who hires a worker / employee can be responsible as long as his / her relationship with the relationship in a hospital / corporation.Kata Kunci : Tanggung Jawab Pidana, Korporasi, Rumah Sakit

Corporate Criminal Responsibility In Cases Of Wildfires As The Legal Protection For Public (A Study In Central Kalimantan Province)

Wildfires, caused by degradation and deforestation in one decade and done by corporation who has legality in forest management, has destroyed woodland and made many losses in all aspects. In the economic development, almost all national development sources come from the management of natural resources of forest areas in Indonesia. In the 1945 constitution chapter XIV, article 33, paragraph 3, it is stated that “The land, the waters, and the natural riches comtained therein shall be controlled by the state and exploited to the geratest benefit of the people”. In fact, the weaknesses of law enforcement in forestry and environment make the transgression and deforestation keep on going.

CORPORATE CRIMINAL LIABILITY IN INDONESIA ON THE PERSPECTIVE OF COMPARISON

The regulation of corporate criminal liability in Indonesia's criminal justice system is basically a new and still debatable issue. It is said that because in the Criminal Code is not recognized and regulated explicitly about the corporation as a subject of criminal law. This is a natural thing since the WvS Criminal Code still adheres to the principle of "societas delinquere non potest" or "non-potest university delinquere", that is, a legal entity can not commit a crime. Thus, if in a society there is a criminal offense, then the criminal act is deemed to be done by the board of the corporation concerned. Regarding the corporate criminal responsibility system in Indonesia, in the corruption law Article 20 paragraph (1), if the corporation committed a criminal act of corruption, then those responsible for the criminal act shall be the corporation only, the management only, or the corporation and its management. Thus, it can be said that the regulation of corporate criminal liability in the legal system in Indonesia is expressly only regulated in special criminal legislation, because the Criminal Code of WvS still adheres to the principle of "societas delinquere nonpotest" so it is not possible to enforce corporate criminal liability in it.

Contextualising the corporate human rights responsibility in Africa: a social expectation or legal obligation?

ABSTRACT: It has been nearly impossible to muster global consensus on attributing companies with human rights obligations because of persisting contestations on how best to regulate corporate businesses under international law. Whilst several propositions exist including the recent UN Guiding Principles on Business and Human Rights, they mostly constitute ‘soft law’, are non-binding and essentially reinforce the same old argument that only states have human rights obligations. They have little or no legal repercussions on businesses, and provide no remedies to victims. Given the fault lines between the global North and South on the issue and the fatal impacts of transnational corporations in Africa, this article conceptualises a legal basis for demanding corporate accountability in Africa. The article utilises a doctrinal methodology, and two analytical approaches – the human right-based approach and insights from Third World approaches to international law – in establishing that since international human rights law places the protection and realisation of fundamental human and group interests at its core, its legal threshold requires that all endeavours which can impact on human rights, including abusive corporate conduct, are bound by its rules. It finds that the concept of ‘corporate human rights responsibility’ derives from international and domestic human rights law and therefore is vested with a legal basis as against the broader idea of corporate social responsibility that is based on voluntarism. With its emphasis on the protection of groups and individual duties, and recognition of corporate criminal responsibility, the African human rights and evolving criminal justice systems provide a background for conceptualising corporate responsibility in Africa differently.
 TITRE ET RÉSUMÉ EN FRANÇAIS: Contextualiser la responsabilité des entreprises en matière de droits de l’homme en Afrique: une attente sociale ou une obligation légale? RÉSUMÉ: Il a été presque impossible de trouver un consensus mondial d’imposer aux entreprises des obligations en matière de droits humains en raison des contestations persistantes sur la meilleure façon de réglementer les entreprises commerciales en vertu du droit international. Bien que plusieurs propositions existent, y compris les récents Principes directeurs des Nations Unies relatifs aux entreprises et aux droits de l’homme, elles constituent essentiellement des normes non contraignantes et renforcent l’argument selon lequel seuls les États ont des obligations en matière de droits humains. Ces normes ont peu ou n’ont aucune répercussion juridique sur les entreprises et ne fournissent aucun recours aux victimes. Compte tenu des positions divergentes entre le Nord et le Sud sur la question et les conséquences néfastes des entreprises multinationales en Afrique, cet article conceptualise une base juridique pour exiger la responsabilité de ces entreprises en Afrique. L’article utilise une méthodologie doctrinale et deux approches analytiques – l’approche fondée sur les droits de l’homme et les approches tiers-mondistes du droit international – pour établir qu’étant donné que le droit international des droits de l’homme place la protection et la réalisation des intérêts fondamentaux humains et collectifs à sa base, son seuil légal exige que tous les efforts qui peuvent avoir un impact sur les droits de l’homme, y compris les comportements abusifs des entreprises, soient soumis à ses règles. L’article constate que le concept de ‘responsabilité des entreprises en matière de droits de l’homme’ découle du droit international et national des droits de l’homme et est donc doté d’une base juridique au contraire de la conception plus large de responsabilité sociale des entreprises fondée sur le volontarisme. En mettant l’accent sur la protection des groupes et les devoirs individuels et la reconnaissance de la responsabilité pénale des entreprises, le système africain de droits de l’homme et la justice pénale évolutive fournissent un contexte pour conceptualiser différemment la responsabilité des entreprises en Afrique.

PERTANGGUNGJAWABAN PIDANA PENCEMARAN LINGKUNGAN HIDUP YANG DILAKUKAN OLEH KORPORASI

Research on criminal liability of environmental pollution by corporations, multinational corporations have shown a massive accumulation of wealth and created a wide range of personalities. Whereas in the field of criminal law, which is heavily linked to accountability referred to in the Criminal Code (KUHP) only recognizes individuals as the subject of criminal law. Corporations not yet seen as a subject of criminal law. However, in subsequent developments, it is mentioned in the special criminal law. The relationship with vicarious liability or corporate liability in criminal law can be described as the imposition of criminal responsibility to a person in the capacity of the principal offender, based on the offense or at least an element of offense committed by another person. The person who acts, however, must be responsible only for his actions. It takes firmness to put the corporate criminal responsibility on the environmental offense so that the corporation that carries out negligence in exploiting nature causing pollution can be punished according to its fault. Similarly, socialization is needed to society about the possibility of environmental depictions that must be accounted by the corporation. It is so important to capture community participation in maintaining environmental wisdom.

Legislative policy on the regulation of corporations as the subject of crimes

Purpose The purpose of this paper is to examine the criteria of the provision on the corporation as the subject of crimes regulated in criminal legislation outside Indonesian Penal Code (KUHP) in the past five years. The criteria will be used to explore the construction of corporate criminal responsibility. Design/methodology/approach The method of the research is normative-legal study using the library research. The method of the examination is a qualitative-description. The data used are secondary data, including legislations, books, journals and other materials. Findings It is found that in the past five years, there are 25 criminal legislations outside KUHP which have the provision on corporation as the subject of crimes. In those 25 legislations, only four legislations which have the criteria of corporate criminal responsibility. In those legislation, it can be concluded that the construction of corporate criminal responsibility is based on identification and aggregation theory. Originality/value This research is novel in Indonesia. This research examines the specific articles of several legislations to deeply describe the corporate criminal responsibility.

Antonova E. Y. Actual foundations of corporate (collective) criminal responsibility. St. Petersburg: The Legal Center Press, 2011. 421 p.

Antonova E. Y. Actual foundations of corporate (collective) criminal responsibility. St. Petersburg: The Legal Center Press, 2011. 421 p.

Responsabilidade penal da pessoa jurídica na China: legislação e suas deficiências

A punição da pessoa jurídica na República Popular da China é tema relativamente novo. Dado o sistema de organização da economia política chinesa, até 1978, a situação foi contornada pelo Código Penal revisado, sob a rubrica “Crimes Cometidos por uma Corporação”, caracterizando-se a responsabilidade penal da pessoa jurídica chinesa pelo sistema de dupla imputação imposto à corporação e à pessoa física responsável pelo crime. Atualmente há no Direito Penal chinês apenas um tipo de sanção pecuniária que pode ser imposto à pessoa jurídica que comete crime, ao passo que outras sanções como o encerramento das atividades da companhia ou a exclusão na participação em aquisições, podem ser impostas na forma de sanções administrativas em consonância com as normas administrativas. A responsabilidade criminal corporativa demanda princípios mais precisos e detalhados na legislação penal chinesa. Infelizmente, este grau de precisão e detalhamento ainda não foi alcançado pelo Direito Penal chinês. As regras relativas à atuação de empresas multinacionais também são enfrentadas no artigo.