Criminal Breach Research Articles

ІМПЛЕМЕНТАЦІЯ МІЖНАРОДНО-ПРАВОВИХ НОРМ ЩОДО ПРОТИДІЇ ТЕРОРИЗМУ В КК УКРАЇНИ

The law implementation provision issues of international criminal law in the criminal law of Ukraine are considered. Implementation’s particularity of the international legal norms in respect of combating terrorism in the Criminal Law of Ukraine was studied. Proposals for Criminal Law of Ukraine related to the ratification of the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism are analyzed. Improvements to existing Ukrainian criminal law are highlighted. It is concluded that availability of a number of criminal law provisions contains blanket dispositions which aimed to give a perception to the content of criminal breaches components referring to other legal acts (in particular, international treaties, conventions, acts of other sectoral legislation), which, in turn, explicate an essence of prohibitive provisions. In such cases, an appliance of international legal laws is eventual. It is defined that compliance with international obligations in national legislation relating to the ratification of the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism is quite possible not only by criminalizing certain unlawful acts in the Criminal Code of Ukraine, but also through the keeping already available composition including committing offenses recommended by an international act. Herein, an internal legislator should retain the possibility of certain variability in choosing the form of implementation of international legal norms criminal legislation, taking into account the publicity of the relevant field and, above all, the preservation of sovereignty and national interests in the field. Basically, the carried out research demonstrates the complicity of regulating the implementation of international criminal law into national legislation requiring a comprehensive analysis of international legislation that should be preceded by integration into the Criminal Code of Ukraine, and requires the consideration of the interests of all parties of the international agreements.

Regulating Solicitor’s Clients’ Money: A Stitch in Time Saves Nine

In West Malaysia, solicitors are regulated under the Legal Profession Act 1976 (LPA). Pertaining to holding clients' money to perform the clients' instructions, the LPA empowers the Bar Council to enact rules under Section 78. Pursuant to the said power, Solicitors Account Rules 1990 (SAR) is enacted to regulate the the management and maintenance of clients' money hold by solicitors. However, SAR only provides a minimum rule on maintaining clients' money with no fund security and primarily based on trust and confidence in the solicitor's profession. Due to this fact, mismanagement and misappropriation of client's monies are expected, which some resulted in the solicitors charged for criminal breach of trust of clients' money under the Penal Code (Act 574). Nevertheless, no criminal action against a legal firm that misappropriated the client's money as a legal firm is not a legal entity under criminal law. This paper examines the legal firm's compliance in managing the client's money under the SAR. The paper employs a doctrinal method and applies a content analysis approach. The research concludes that there is in dire need of the monitoring compliance mechanism for the protection of clients’ money as adopted by other jurisdictions. This paper proposes an amendment to SAR, which incorporates the due diligence process to maintain the client's money and penalty provisions to ensure that solicitors compensate for any misappropriation of clients’ money.

On the Illegal Intent in Criminal Breach of Trust from the Perspectives of Historical Development and Criminal Structure: A Note Concerning Trending Legislative Hypertrophy Towards Special Breach of Trust Crimes

On the Illegal Intent in Criminal Breach of Trust from the Perspectives of Historical Development and Criminal Structure: A Note Concerning Trending Legislative Hypertrophy Towards Special Breach of Trust Crimes

On Criminal Law Risks and the System of Crimes in the Field of Anti-Corruption Compliance

Using a broad understanding of criminal law risks, their classification, and issues examined within the recently proposed theory of criminal riskology, the authors conclude that it is necessary to apply this theory to the research of public relations in the field of counteracting corruption, and specifically, to assess criminal law risks of corruption in the private sector, or commercial corruption. In this connection, alongside the group of corruption-related crimes, corruption crimes that are included in the Russian doctrine of criminal law and criminology, they propose specifying an independent group of crimes in the field of anticorruption compliance, which are based on criminal breach of contracts of service in commercial or other organizations and, primarily, crimes connected with commercial bribery. The authors also use their assessment of Russian and German criminal legislation and the practice of its enforcement to conduct a general analysis of crimes that could be classified as crimes in the field of anticorruption compliance. According to the authors, such crimes include corruption-related crimes proper if they are characterized by specific crime-indication features as well as so-called accompanying crimes (mainly, economic ones). Although a compilation of a full list of corresponding crimes is not included in the scope of this article, the authors believe that it will directly depend on the maximally precise understanding of the «picture» of criminal law risks of corruption in the private sector. They come to the conclusion that the system of crimes in the field of anticorruption compliance differs in its quantitative and qualitative characteristics from the systems of corruption-related crimes and corruption crimes. Separating crimes in the field of anticorruption compliance as a separate group alongside corruption-related crimes (corruption crimes) will make it possible to examine the mechanisms of committing such crimes more thoroughly, to work out special measures of their prevention, to conduct a detailed analysis of their criminological features and, in general, will contribute to the improvement of the system of counteracting corruption within the frameworks of not only Russian, but also German practice of law enforcement.

Tindak Pidana Pembobolan Dana Nasabah dapat Mengurangi Kepercayaan Masyarakat terhadap Industri Perbankan

The development of the banking industry by entering the current era of globalization and liberalization of financial markets, has resulted in increased competition among banks, especially in fund raising. Therefore, bank management is required to have the skills to manage the bank's wealth, debt and capital reflected in the bank's balance sheet well. A more fundamental of the expertise and skills in managing the bank, it is necessary to be careful and followed by the good faith of the bank management, ranging from the board of commissioners, directors and employees of the bank. This means that bank managers should be the party that always adheres to the high code of banking ethics and complies with all applicable laws and regulations in the banking sector. But in practice, it is not always possible to run well if it is not covered by the possibility of food-storage that leads to fraud by breaking customer funds conducted internally by the bank itself. Of these problems raises fundamental questions, namely (1) What causes the criminal breach of customer funds in the banking industry, and (2) How to resolve the criminal breach of customer funds in the banking industry. To answer both questions, legal research methods are used. Normative juridical approach (legal research), namely research on positive laws by evaluating the relevant rule of law. This approach identifies and codified the law as the norm, rules, regulations related to the criminal breach of customer funds in the banking industry.

12 不正融資における借手の刑事責任（背任罪・特別背任罪）

12 不正融資における借手の刑事責任（背任罪・特別背任罪）

Wm Morrison Supermarkets Plc v Various Claimants

Wm Morrison Supermarkets Plc v Various Claimants

Combating corruption in Singapore: a comparative analysis of two scandals

PurposeThe purpose of this paper is to compare two corruption scandals in Singapore to illustrate how its government has dealt with these scandals and to discuss the implications for its anti-corruption strategy.Design/methodology/approachThis paper analyses the Teh Cheang Wan and Edwin Yeo scandals by relying on published official and press reports.FindingsBoth scandals resulted in adverse consequences for the offenders. Teh committed suicide on 14 December 1986 before he could be prosecuted for his bribery offences. Yeo was found guilty of criminal breach of trust and forgery and sentenced to 10 years' imprisonment. The Commission of Inquiry found that the Corrupt Practices Investigation Bureau (CPIB) was thorough in its investigations which confirmed that only Teh and no other minister or public official were implicated in the bribery offences. The Independent Review Panel appointed by the Prime Minister's Office to review the CPIB's internal controls following Yeo's offences recommended improvements to strengthen the CPIB's financial procedures and audit system. Singapore has succeeded in minimising corruption because its government did not cover-up the scandals but punished the guilty offenders and introduced measures to prevent their recurrence.Originality/valueThis paper will be useful for scholars, policymakers and anti-corruption practitioners interested in Singapore's anti-corruption strategy and how its government handles corruption scandals.

Criminal Proceedings in the Wake of the Icelandic Banking Crisis

Iceland was hit hard by the financial crisis in 2008. This article discusses the criminal case law handed down in Iceland following the collapse of the Icelandic banks in October 2008. As a result of the banking failure, important legislative measures were taken. A new office of a Special Prosecutor was established by law to deal with potential economic crimes committed during the years leading up to the collapse. The extreme nature of the banking failure paved the way for criminal proceedings. Moreover, as the banks had collapsed, they were not bailed out by the State. Rather, new banks were established under new management. This facilitated investigation. Three main categories of criminal behaviour have led to charges: insider fraud, market manipulation, and criminal breach of trust. The Supreme Court has pointed out that although the information might not, on its own, be held to make a significant difference for a reasonable investor, it may, when put in the context of a mosaic of other information, be deemed to have a significant impact on the share price. Market manipulation mostly concerned systematic manipulation of the share price of each of the banks, rather than a single event of manipulation. Reckless lending can be classified as criminal breach of trust. Criminal breach of trust was often the result of market manipulation, as banksʼ funds were put at enormous risk in order to finance the purchase of their own shares by lending to borrowers whose only substantial asset was often these same shares.

Invisible Powers to Punish: Licensee-barring Order Provisions in Victoria and South Australia

Problems associated with excessive alcohol consumption have prompted a range of legislative, regulatory and operational responses. One provision empowers licensees, in Australian jurisdictions such as Victoria and South Australia, to formally exclude patrons from their venues and the surrounding public area. The imposition of a licensee-barring order requires no demonstrable offence to be committed. No proof needs to be documented and the ban takes effect immediately. Non-compliance is subject to police enforcement and possible criminal breach proceedings. The process through which a barring order may be challenged can be ambiguous and time consuming, and the punishment is typically served regardless of the review outcome. However, limited data are available to enable assessment of the way in which barring orders are used. As such, this paper examines how licensee-barring orders extend to non-judicial and non-law enforcement officers an on-the-spot and pre-emptive power to punish. Yet, with no formal training, monitoring or meaningful oversight of their use, barring orders are open to abuse and constitute a summary power to punish that is opaque to scrutiny.

The influence of third party to the effectiveness of commercial crime investigation

PurposeThe purpose of this paper is to examine the problems that are related to the witness and acquisition of evidence during the commercial crime investigation.Design/methodology/approachData for this research were collected primarily from the semi-structured interview session conducted with ten investigation officers from the regulatory and enforcement bodies in Malaysia.FindingsThe late response from witnesses and third parties will prolong the completion period of investigation. The problem of long completion period arises in a process of investigation, particularly on the cooperation of the witnesses in attending the recording statement session and providing the evidences as well as other party who are required to provide relevant information. Although there are sufficient provisions of law that allow investigation officers to acquire evidences from witnesses and third parties, there is no time limit for third parties to respond to the enquiries from the investigation officers. The degree of the difficulties and complexity of the cases also influence the completion period of the investigation of commercial crime cases. Cases like cheating, criminal breach trust and computer crimes have varieties of modus operandi and difficulty. Thus, the burden to proof beyond reasonable doubt also increased for the investigation officers to fulfill the requirement of evidences as stated in the relevant acts to satisfy the public prosecutor to bring the case to the court.Research limitations/implicationsThe study provides some evidence to indicate that commercial crime investigation generally is a collective effort. All parties involved should participate and give their best cooperation to complete the investigation in a reasonable period of time, so that the justice can be uphold for the best interest of the victim. This study, however, is limited to small number of respondents and narrow scope of study because of sensitivity of the topics.Practical implicationsIt should be noted that the main problem that has been faced by the investigation officers is to acquire the cooperation from relevant parties either government or nongovernment agencies and individual witness. No matter how complex is the case, it will depend largely on the willingness of relevant parties to cooperate and providing the evidences required for the investigation officers to complete the investigation within the reasonable period. The problem has to be remedied to ensure that it will not affect the perception of public especially complainants, toward the efficiency of the investigation officers, to complete the investigation. In general, the public perceptions also affect the image of the government as a whole.Originality/valueThis study is original as it gathers the information directly from the investigation officers who are directly involved in the commercial crime investigation. The data collected were also highly confidential and not easily accessible by researchers, which are rare in literature and invaluable for academic publications.

Is there a natural rate of crime in India?

This paper examines the natural rate of crime hypothesis in the Indian context. We use annual time series data on aggregate as well as specific crime categories for the period 1953–2012. Various types of unit root tests – conventional as well as unit root test with endogenously determined structural breaks – are used to identify whether the respective crime rates are stationary. The empirical findings suggest that majority of the crime series are stationary with structural breaks implying the existence of a natural rate of crime in India in the long run. Specifically, total crimes along with individual crime types such as burglary, counterfeiting, criminal breach of trust, dacoity and theft are stationary with two structural breaks, whereas kidnapping & abduction and cheating are stationary with one break. Our findings are consistent with the literature which argues that crimes with pecuniary motives are more likely to have natural rates.

The French Connection: Complicity in the 1994 Genocide in Rwanda

ABSTRACTThis article explores the French government’s political and military relationship with Rwanda since 1975, with a particular focus on the period from 1990 and throughout the genocide of 1994. An argument is made that the French state, through its behavior in Rwanda before and during the genocide of 1994, is complicit under international criminal law. As a concept, complicity provides a lens for understanding the scope of liability of states as responsible actors within the international system. The article argues that that the knowing participatory role played by the French throughout the period of the Rwandan genocide can be construed as complicity in genocide. This is a criminal breach of international law.

Honest Services Fraud as a Criminal Breach of Fiduciary Duties

From a comparative perspective, the challenges that American courts and legislators are facing when trying to construe an honest services fraud statute are familiar. Almost all European countries have a general provision that criminalizes any breach of fiduciary duties that brings about economic harm to the principal. The comparative inquiry also helps shed light on the way in which the offense should be defined in a future statute. First, honest services fraud should be treated as a separate offense that is different from fraud; more specifically, the offense of honest services fraud should be conceived as a midpoint between fraud and embezzlement. Second, this offense—which could be defined as a “disloyalty” or “mismanagement” crime—should be construed along the lines of a derivate action for breach of fiduciary duties, although with higher standards, given that its violation triggers criminal sanctions. Third, this new disloyalty offense should include elements that are not required by current law, including whether “actual” or “reasonably foreseeable harm” is caused and whether the breach of the fiduciary duty is the proximate cause of the actual harm. The time has come to create a freestanding general disloyalty offense that requires an actual or reasonably foreseeable harm to the corporation as a prerequisite to criminal liability.

Should the Law Convict Those Who Act from Conviction? Reflections on a Demands-of-Conscience Criminal Defense

How should the judge or jury in a just criminal court treat a civil disobedient, someone who performs a conscientiously motivated communicative breach of the criminal law? Kimberley Brownlee contends that all else equal a court of law should neither convict nor punish such offenders. Though I agree with this conclusion, I contend that Brownlee mischaracterizes the nature of the criminal defense to which civil disobedients are entitled. Whereas Brownlee maintains that such actors ought to be excused for their criminal breach, I argue that they ought to enjoy a justification defense. Acts of civil disobedience are not (morally) wrongful violations of the law for which an actor ought not to be blamed; rather, they are violations of the law that are not (morally) wrong in virtue of their illegality. It is the absence of wrongdoing, and not merely the absence of fault, that renders the conviction and punishment of those who perform acts of civil disobedience inappropriate.

Remedy for Criminal Breach of Statutory Duty

Remedy for Criminal Breach of Statutory Duty

Criminal Liability of Directors of a Private Limited Company Seated in Germany

During the last decade, a great number of German businesses formed private limited companies by shares in England and transferred the company’s real seat to Germany in order to avoid the minimum capital rules for the German limited liability company. The discrepancy between the place of registration and the real seat leads to questions about the criminal liability of company directors under English and German law. This article shows that English courts have jurisdiction over certain offences regardless of the place the director acted. In particular, he may be convicted for failing to comply with statutory duties under the Companies Act 2006 as well as false accounting or false statements under Theft Act 1968 ss. 17, 19. With respect to German law, the company law reform of 2008 explicitly imposed the duty to file for insolvency on directors of foreign corporations. Also, the criminal offence for failing to file for insolvency in § 15a (4) of the Insolvency Code is compatible with the freedom of establishment under European law. If the director causes a financial loss to the company by breaching his director’s duties, he may be convicted for breach of trust under § 266 of the Criminal Code regardless of the fact that the relevant duties are regulated by English law. The German Federal Supreme Court recently held that recourse to English company law in order to establish a criminal breach of trust does not violate the principle of legal certainty in Article 103 (2) of the Basic Law. Furthermore, German bankruptcy offences may apply if the director violates the authoritative English accounting standards.

Whose Interests Should the Managers Serve? – Insights from Recent Korean Cases on LBO Transactions

It has long been debated whose interest the manager of a company should serve. Many scholars including those who belong to the “law and economics” school argued that the only purpose of a company is the maximization of the shareholder value. An alternative thinking, or “stakeholder” model, argued that the manager may, or even should, consider the interest of other stakeholders such as employees, creditors, community, suppliers and customers. In Korea, this debate has been framed under the doctrine that the directors owe duties toward “the corporation itself.” Although this doctrine (or rhetoric) may sound logical as direct deduction from the concept of “separate legal personality,” it does not provide the ultimate answer to the real question – whose interests the managers should serve. It became a serious issue in a few recent Korean Supreme Court cases involving LBO transactions. In a criminal case in 2006, the defendant, who was the 100% owner of an SPC, became CEO of the company after the SPC acquired majority shares of the target. The SPC financed the acquisition by from banks and the provided its asset as collateral in favor of the SPC. The SPC did not default on the and the target’s performance became significantly better after the acquisition, satisfying all the shareholders and creditors of the target. The Supreme Court, however, held that the defendant was guilty of criminal breach of trust because, by causing the to provide its asset as collateral in favor of its majority shareholder, he jeopardized the “corporation itself.” Similar reasoning is found in many other court cases in Korea. Other forms of LBO transactions designed for debt push-down, such as a merger of the with the SPC or capital reduction following borrowings at the level, were challeged as criminal breach of trust because they harmed the target itself. The author argues that the formalistic understanding of the legal personality maintained by the Korean courts does not provide the right answer to our question. At the same time, however, the author does not believe that such formalistic understanding should be completely replaced with the shareholder supremacy theory, since it has some value that shareholder supremacists often miss. The author claims that the stakeholder model helps us explain and critically analyze the “corporation itself” doctrine held by the Korean courts, without entirely kicking out some value this apparently clumsy doctrine has. Under the stakeholder model, we can clarify the legitimate limit of the LBO transaction and distributions to the shareholders.

What self-report impulsivity measure best postdicts criminal convictions and prison breaches of discipline?

Impulsivity is the tendency to act with little forethought or regard for the consequences, and greatly influences risk of offending. The ‘What Works’ literature highlights the importance of reliable and accurate assessments of risk and need in offender populations in order to reduce reoffending. There is a lack of consensus regarding the conceptualization of impulsivity and the number of dimensions that constitute the construct, making identification of the most appropriate self-report impulsivity measure problematic. Nevertheless, the predictive validity of different impulsivity measures for antisocial behaviour is well established. This study examined the relative validity of four self-report measures of impulsivity to postdict criminal convictions and prison breaches of discipline for 105 adult male offenders currently incarcerated within UK prisons. The most reliable measure of impulsivity applicable to offender populations was the Eysenck Impulsiveness Questionnaire, which was good for postdicting breaches of prison discipline and violent criminal convictions.

Citizenship revocation as punishment: On the modern duties of citizens and their criminal breach

Citizenship revocation has recently resurfaced as a source of political and legal debate in many democratic countries. While some countries have rejected the practice mainly on constitutional grounds, others have amended their laws to make it easier for the state to revoke the citizenship of both naturalized and born citizens. Proponents of the practice view it as an administrative measure and a necessary means for defending vital state interests, while opponents view it as a fundamental violation of basic civil and human rights. Countering both positions, the article offers a justification for citizenship revocation under highly limited conditions. It shows why citizenship revocation can and can only be justified as a punitive (rather than administrative) measure in response to a fundamental breach of the duty of citizens as members of an egalitarian, free, and deliberative polity and only as long the revocation of citizenship does not leave them stateless.