Corporate Offenders Research Articles

Characteristics of Crime Convenience: The Case of Corporate Offenders

ABSTRACT This article presents a review of the research addressing the seriousness of corporate crime and the convenience for corporate offenders. Insights from this review are important as detection and prevention of corporate crime is dependent on addressing convenience issues for offenders. The perspective in this article suggests that convenience is a matter of avoiding strain and pain, saving time and efforts, overcoming barriers where the fences are at their lowest to gain from business possibilities and to avoid business threats such as bankruptcy. The opportunity for deviance among corporate offenders is typically based on their high social status and their legitimate access to resources to do both the right things and the wrong things. The opportunity structure to conceal deviance consists of institutional deterioration, lack of oversight and guardianship, and sometimes also criminal market forces. This is a scoping review article to identify convenience characteristics of corporate offenses and corporate offenders. Insights

Patterns of Corporate Punishment in Corruption Crimes in the Indonesian Legal System

The issue of criminalizing corruption crimes involving corporations has become a concern because, recently, the phenomenon of corruption in several cases has involved corporations that are not easily subject to criminal sanctions. This research aims to analyze the criminal liability for corporations as perpetrators of corruption crimes in the Indonesian legal system and the pattern of punishment for corporations that commit corruption crimes. This research method applies the normative juridical method with a qualitative analysis of secondary data. The results show that law enforcement officials who determine corporations as suspects in corruption crimes and punish them but have difficulty in ensnaring corporations. One of the causes is the incomplete provisions regarding corporations as legal subjects in the anticorruption law. In addition, investigators have difficulty finding evidence and determining the identity of corporate offenders. The pattern of punishment for corporations is to apply a cumulative-alternative punishment pattern aimed at the corporation and its management. For corporations, the type of punishment imposed is fines or economic punishment aimed at recovering losses due to corruption or administrative punishment such as revocation of business licenses, while for the management, the punishment imposed is imprisonment and fines.
 Keywords: sentencing, corruption, corporation

Corporate criminal liability in Islamic banks in Malaysia

PurposeThis paper aims to highlight provisions that may attract corporate criminal liability (CCL) in legislation and regulations enacted in Malaysia. Further, this paper identifies gaps or obstacles in the implementation of CCL in Islamic banks (IBs) in Malaysia.Design/methodology/approachThis research adopts the qualitative methodology. More specifically, it uses normative legal research by focusing on primary and secondary data obtained from legislation, regulations, decided case laws, guidelines, law textbooks and bank annual reports in relation to CCL provisions. It also conducts semi-structured interviews with different categories of experts, including legal practitioners (lawyers), regulators from Bank Negara Malaysia (BNM) and Securities Commission Malaysia, officers of the Attorney General's Chambers and officers from legal departments in IBs.FindingsThe results conclude that IBs should implement the law on CCL because they are considered corporations. It is also found that not all IBs complied with CCL provisions brought corporate offenders before the court.Research limitations/implicationsThis research is restricted by its specialisation in CCL in IBs in Malaysia.Practical implicationsThe CCL provision has to be implemented effectively by IBs to achieve the benefit. However, not all IBs implement CCL provision properly. The understanding created by the interview data illuminates the challenges in implementing CCL provisions. Thus, this paper seeks to change the approach in the implementation of CCL provisions by IBs in Malaysia.Originality/valueThe paper touches upon a new area, notably CCL in IBs, which is not well researched in past literature. Although there is a vast research on CCL, corporate crime in IBs in Malaysia is still an unexplored area. This study gives light on the implementation of CCL provisions in IBs.

UK: New Borders; New Approach

Until ten years ago, the UK’s approach to bribery and corruption, including at its borders, was fragmented, limited in scope and unsuccessful in tackling bribery across borders. This article focuses on the changes which the Bribery Act 2010 has brought about over the last decade which has elevated the UK’s anti-bribery regime to one which is highly regarded. One might expect the natural consequence of the Bribery Act’s international reach to be a dramatic increase in the number of prosecutions (particularly in relation to bribing public officials) – however that has not proved to be the case. This article shows that the Bribery Act has instead brought about a fundamental change of approach by lawmakers and businesses alike – which is not evident from the raw statistics. The Bribery Act’s power lies in the combination of its international reach and the obligations it places on commercial organizations to prevent bribery which have caused UK corporates (including those incorporated elsewhere but who carry on a business, or part of a business, in the UK) to significantly tighten their anti-bribery internal policies and procedures. The shift in focus from the individual to the corporate has also been reflected in the approach of UK law enforcement through their use of Deferred Prosecution Agreements which has resulted in corporate offenders being punished with unprecedented fines. The paper ends by asking whether Brexit and the re-establishment of a large number of hard borders with EU countries will lead to an increase in the number of prosecutions for bribing customs officials after all. Bribery Act 2010, bribery and corruption, corporate offence, commercial organization, failure to prevent, extra-territorial reach, strict liability, Deferred Prosecution Agreement

Corporate Monitors: A Comparative Study

Corporate monitorship is a pretrial diversion mechanism that enables prosecutors to rehabilitate corporate offenders. The article examines the legal and regulatory trajectory of corporate monitors in the US, UK and a few other economies. The article documents that corporate monitors not only permitted the corporate offenders to settle criminal charges with law compliance, but also helped to reduce the number of future violations. The article argues that the regulatory framework for corporate monitorship tends to rely upon principle-based judicial rules and the supplementing procedural guidelines. These guidelines often focus on the internal and external supervisory measures on the appointment of corporate monitors. Our research also presents an evidence-based, preliminary assessment of selected pilot schemes on corporate monitorship carried out at sub-national levels in China. It proceeds to make policy recommendations drawn from our comparative survey of corporate monitors. These include allocating greater prosecutorial discretion in regard to the use of corporate monitors in criminal proceedings, addressing the legislative inconsistencies of corporate monitorship with the existing PRC criminal justice system, and enhancing inter-agency coordination in respect of corporate monitors.

Pertanggung Jawaban Pidana Karyawan Korporasi Dalam Tindak Pidana Lingkungan Hidup (Studi Putusan No. 133/Pid.B/2013/PN. MBO)

Environmental Crimes committed by a person or corporate legal entity often occur around the environment where we live without us knowing it, especially in an environment full of companies that can damage the surrounding environment. The research method used in this study is juridical normative and descriptive analytical nature of the study. The legal regulation on environmental crime, especially regarding forest and land burning is regulated in Article 187 of the Criminal Code, Article 78 paragraph (3) of Law Number 41 of 1999 concerning Forestry, Article 69, Article 108 and Article 119 of Law Number 32 of 2009 Regarding Environmental Protection and Management, Article 48 of Law Number 18 Year 2004 Plantations. Criminal liability of corporate offenders in imprisonment for 3 (three) years and a fine of Rp. 3,000,000,000 (three billion rupiah), Determine if the fine is not paid replaced with imprisonment for 5 (five) months. Judge's consideration in this decision, that the Defendant violated Article 108 in conjunction with Article 69 paragraph (1) letter (h) jo Article 116 paragraph (1) letter (b) of Law Number 32 of 2009 concerning Environmental Protection and Management and jo Article 64 paragraph (1) of the Criminal Code has several considerations, namely incriminating circumstances and mitigating circumstances.

Extenuation in the Penal Code 2015 and Current Issues

Extenuation is considered by the Court when issuing a sentence, manifesting the state’s leniency policy and the classification principle of penal liability in the Penal Code of Vietnam, ensuring efficiency and meaning of penalties. On this basis, this Article provides a new scientific approach to the definition of extenuation, analysing contents and levels of extenuation in provisions of the Penal Code 2015 (revised in 2017), examining issues in practical adjudication, and making recommendations on crime prevention and improvement of rehabilitation and re-education of individual and corporate offenders in the current context of the country.
 Keywords: extenuation, leniency policy, classification principle, goodness, penalty.

Penerapan Pidana terhadap Korporasi sebagai Pelaku Kejahatan dalam Perlindungan Kesehatan dan Keselamatan Kerja (K3) Buruh di Indonesia

Corporate crime in protecting K3 workers/laborers in the workplace is very structured. The corporation is always profit-oriented as much as possible without regard to social aspects. This situation makes it easy for corporations to disobey the applicable laws and regulations. This study aims to determine the application of criminal offenses for corporate offenders if negligent in providing protection of health, work safety for workers. The research method used in this study is normative research. The analysis technique used is qualitative analysis with the support of secondary data in the form of a Law document. The results showed that the application of criminal acts against corporate perpetrators who violated the Manpower Act in particular OHS was not optimal and was not yet effective. This finding is proven by the absence of protection from work accident cases because the Occupational Health Safety Act (OHS Law) is still dysfunctional and cannot be enforced (dysfunctional and non-enforceable). In connection with that, all cases of work accident cases do not use OHS Law as the basis for the indictment, the basis for prosecution, or the basis for a criminal prosecution, but instead, use the articles in KUHP and other special laws outside the unusual KUHP

Do companies pay the price for environmental crimes? Consequences of criminal penalties on corporate offenders

This paper is concerned with the negative collateral consequences monetary sanctions may have on companies that are prosecuted for violating federal environmental laws such as the Clean Air Act and Clean Water Act. Companies often claim fines for law violations will force them to lay off employees and possibly go bankrupt. Using the treadmill of crime theoretical lens, we employ a multivariate analysis on a unique data set of 169 companies to determine if their federal prosecutions are associated with negative collateral consequences. We find that some companies, upon being fined, are more likely to experience negative collateral consequences than others.

Environmental crime prosecutions in Ireland, 2004–2014

ABSTRACTDespite increased interest in environmental crime and green criminology, few studies address the use of criminal penalties in response to environmental crimes. A handful of published examples employ data from the United States or the Flanders court system, and little is known about how other nations punish environmental violations. Addressing this issue, the current study examined the use of criminal environmental penalties in Ireland from 2004 to 2014. Few criminal environmental cases (N = 147) and few environmental offenders (N = 154) were represented in these data over time. Consistent with the expectations of green/environmental crime researchers, mean penalties for environmental violations, which in Ireland only include fines and investigative cost recovery penalties, were rather small. Unlike in the US or Flanders, the majority of offenders were corporate offenders as opposed to individuals. Contextual factors related to Ireland’s economy, history and use of criminal sanctions should be used to interpret these factors, and prevent generalising from these data.

The Illicit Distribution of Precursor Chemicals in China: A Qualitative and Quantitative Analysis

China has been marked as a source country from which large volumes of precursor chemicals are shipped to foreign drug markets for synthetic drug production. However, the basic patterns of illicit distribution remain unclear. Data from closed criminal cases were extracted from legal files to develop an objective understanding of illicit distribution patterns in China. The sample consisted of 534 illicit supply cases involving 1481 individuals, three groups of precursor chemicals and 102 chemical manufacturing companies. The offenders could be categorised as lower-class offenders, occupational offenders and corporate offenders based on their profiles and criminal behaviours. Significant differences between the three groups of offenders and their specific patterns of chemical supply suggest a diverse, dynamic and complex nationwide supply network. To better understand this phenomenon in China’s rapidly transitioning society, we provide a description of cultural, legal and political backgrounds, which may provide some explanations at the macro level.

Publisiteitsbevele as Vonnisopsie vir Regspersone - Publicity Orders as Sentencing Option for Juristic Persons

This constribution addresses the issue of adverse publicity orders as a possible supplementary sentencing option for corporate offenders. In South Africa the fine is the primary sentencing option available to courts when imposing sentences on juristic persons. Fines, however, do not adequately serve the purposes of corporate sentencing. Publicity orders require the publication of an offender's conviction, sentence and the details of the offence to individulas or a group of persons (such as shareholders). An adverse publication order damages the corporate offender's reputation - a valuable asset to a corporate entity. It therefore serves the purposes of corporate deterrence. In this contribution criticim is levelled against the fine as primary sentencing option for juristic persons, the notion of corporate reputation is considered from a social and a legal perspective; a functional comparative study of adverse publication orders is presented and recommendations are made regarding the content of effective publicity orders.
 

Reparative justice, environmental crime and penalties for the powerful

Environmental harms are frequently part and parcel of ordinary commercial practice. Powerful social interests not only perpetuate great harms, they also obscure and mask the nature of the harm production. They are also best placed to resist the criminalisation process generally. Indeed, when it comes to corporate criminality, recidivism is built-in to the endeavour to the extent that payment of fines is construed as simply part of the cost of doing business (whether related to processing and transferring of waste, or cutting down trees in particular sections of the forest). Unless substantial penalties are put into play, there is little deterrent. This paper proposes that reparative justice, with an emphasis on repairing harm within a generally more punitive context, would be more appropriate and effective. This is illustrated by consideration of recent cases heard in the New South Wales Land and Environment Court in which a number of private companies were penalised using an interesting variety of sanctions. Repairing harm should not be conflated with 'restorative justice' per se. This is important, since 'repairing harm' can be imposed upon offenders (especially corporate offenders) without necessarily involving consensual agreement and/or 'conferencing' methods of negotiation. Company personnel, including senior managers, change. But to change company practices, especially those that pertain to the economic profit margin, requires regulatory and enforcement systems that penalise and sanction in ways that are tailored to the size and activities of the corporation. For this to succeed, it is argued that specialist environmental courts with well developed problem-solving skills and capacities are required.

Act‐based Versus Harm‐based Sanctions for Environmental Offenders

ABSTRACTWe investigate the design of harm‐based and act‐based sanctions for environmental offences. Empirical evidence concerning both criminal and administrative sanctions for Belgium clearly shows that the determination of harm‐based and act‐based sanctions for environmental offences is less straightforward than theory predicts. In criminal cases, harm‐based sanctions are influenced by offence‐related factors and specifically by the environmental harm caused, while the level of act‐based sanctions is found to be independent of offence characteristics. Further, offender characteristics have a similar impact on both types of sanction, with the exception of the treatment of corporate offenders. In administrative cases, both types of sanction positively depend on the seriousness of (potential) harm caused. We find that sanctions increase for repeat offenders and decrease for offenders who took actions to minimize (potential) damages. Moreover, the analysis provides evidence of multiple objectives pursued by enforcing authorities. While our results confirm the general insights from previous studies, they are innovative in the distinction made between harm‐based and act‐based sanctions. Copyright © 2014 John Wiley & Sons, Ltd and ERP Environment

Justifications and Purposes of Negotiated Justice for Corporate Offenders: Deferred and Non-Prosecution Agreements in the UK and US Systems of Criminal Justice

This article offers an overview of the UK regime of deferred prosecution agreements in the Crime and Courts Act 2013, in light of the practice of pre-trial diversion in the USA and the lessons learnt to date. The effectiveness of this new prosecutorial tool is discussed on the basis of judicial statistics and other available data. The transformation in the American system of corporate criminal liability, through guidelines disseminated by the Department of Justice and by the Securities and Exchange Commission, shows an increasing emphasis on two main topics: (1) corporate cooperation with authorities in the prosecution of individuals and (2) corporate governance. In this regard, the article argues for a new concept of corporate blameworthiness, which it seeks to affirm based on the theory of ‘reactive fault’. The article furthermore reflects on problems with regard to the framework of corporate rehabilitation, while outlining possible remedies against prosecutorial abuses.

Crime: The amount and disparity of sentencing – A comparison of corporate and occupational white collar criminals

Research carried out previously, aimed at examining differences in the length of the sentencing and type of offence, have typically compared white collar and street criminality. The main aim of the current study is to examine the differences in sentence length for white collar occupational and corporate offenders from street crime offenses and to identify which factors eventually could explain such differences. The crime amount was smaller in occupational convictions despite the fact that the average crime amount was significantly less in this group compared to the crime amount among corporate criminals. Socioeconomic status and company size were not found to be associated with the length of the sentence. We discuss whether the difference in length of the sentence could be explained by the fact that occupational crime is committed for the criminals' own purposes or enrichment, while this is often not the case among corporate criminals.

Corporate offenders: is deterrence through imprisonment still relevant in meting out punishment to corporate offenders?

Punishment of corporate individual offenders in South Africa is prescribed by the Criminal Law (Sentencing) Amendment Act 38 of 2007. The Act specifically stipulates a period of not less than 15 years imprisonment as a prescribed minimum sentence applicable in corporate offences committed by corporate individual offenders. This has seen the demise of the exercise of discretionary powers exercisable by the judges in consideration of an appropriate sentence. It has also become associated with an increase in the prison population, due to the exclusion of non-custodial sentencing upon determination of the sentence. This contribution will investigate the current trends in sentencing of corporate individual offenders in so far as it is inclined towards imprisonment. It will also look at the suitability of non-custodial sentencing as an alternative to imprisonment.

Messy Business: Media Representations of Administrative Sanctions for Corporate Offenders

Enforcement against corporate offenses is increasingly carried out by specialized regulatory agencies. These often use publicity as a regulatory tool, in the expectation that disclosure of sanctions will invoke the threat of reputational damage and broadcasts a moral message about desired behavior. This article investigates how media represent administrative offenses in the Dutch financial market, in terms of punitiveness for offenders and in terms of the message about the wrongfulness and harm of offenses. Media coverage of administrative fines is messy in several senses. First, adverse publicity is unpredictable and disproportionally affects small firms in comparison with large, professional firms. In addition, it is also messy in terms of its contribution to the prevention of corporate misbehavior. Media do not unequivocally disapprove of financial market offenses. Rather than clarifying the demarcation line between right and wrong, media describe financial market behavior as a grey zone where differences of opinion can exist over whether certain behavior constitutes an offense. More than a publicity sanction or moral message, media was found to frame offenses by retail banks and capital market firms in terms of the power struggle between firms and the regulatory authority.

Corporate Power to Corporate Crimes: Understanding Corporate Criminal Liability in India

‘Corporate Power to Corporate Crimes: Understanding Corporate Criminal Liability in India’ is about the hypothesis being tested positive that “the corporations are increasing in magnitude and power; however, the law is not able to meet the demands of prosecuting the corporate offenders in absence of a clear picture on corporate criminal liability.” Thus, the cloud surrounding this area has to be removed to make the sky of corporate crime clean and evident to the public like rainwater. The sensitization of public towards these crimes has to be done in a similar way as those of ‘street crimes’ like murder, rape etc. The problem of corporate crime is unique and complex due to several reasons, the primary one being the nature of corporate form. The corporate form has now become the dominant institution in the society. The corporations wield enormous powers by virtue of its independent existence. The part owners, as public shareholders, are scattered and ultimately the management lies in the hands of few who have been identified as ‘alter ego’, ‘directing mind and will’ at various times by various courts. The extension of the vicarious liability to offences of mens rea led to the development of corporate criminal liability. The present book traces these developments and presents a comprehensive position in terms of case laws and examples of corporate crimes.

Illegal Fishing sebagai Kejahatan Korporasi Suatu terobosan Hukum pidana dalam mengadili kejahatan

Coverage, insight and understanding of illegal fishing are understood and adhered to in Indonesian positive law is stealing fish and have a big impact on the economy of the country. Therefore, the essence of regulation and prosecution of illegal fishing in Indonesia should be understood in the prosecution of large-scale illegal fishing, which is generally carried out by foreign fleets, foreign vessels are illegal, which has also resulted in harming the country's economy (Indonesia) trillions of dollars each year. With the model and the type of large-scale theft and harm the national economy, the handling of the regulations should be directed at / to overcome the evils of large-scale and complicated (sophisticated), which belong to the type of crime white collar crime or corporate crime. Know and understand the ins and outs as well as the existence of corporate crime, for law enforcement is a necessity in this modern era, this paper therefore focuses on two keywords (key word) illegal fishing and corporate crime. Knowing and understanding the concepts and regulations surrounding corporate crime and illegal fishing be an important contribution in the process of law enforcement. With the understanding of illegal fishing and corporate crime will be a strong foundation for any legal practitioner, especially of law enforcement in the event proceeds and determine the type and classification of appropriate criminal and law enforcement especially true for judges to dare and did not hesitate to impose sanctions on each involved in illegal fishing or corporate offenders. With a firm and clear sentences, and certainly, the law enforcement officers not only enforce the law and justice but also has saved the country's economy, by preventing potential loss of national wealth, as the implementation of the function of law as an instrument of social engineering. Keyword: Illegal Fishing, Crime Corporation, Breaktrhough of criminal Law