Imposition Of Criminal Liability Research Articles

Pertanggungjawaban Pidana Korporasi dan Pengurusnya dalam Penegakan Kerusakan Lingkungan Hidup akibat Limbah B3

Environmental damage often involves corporations as industrial actors, and legislation in Indonesia has recognized corporations as legal subjects that can be held criminally responsible. This research aims to explore and analyze the concept of corporate criminal liability in the context of environmental damage caused by B3 waste in Indonesia. The main focus of the research is on the legal provisions governing environmental crimes, with special emphasis on Law Number 32 of 2009 concerning Environmental Protection and Management (UUPPLH), Law Number 41 of 1999 concerning Forestry (UU Forestry), and Law -Law Number 39 of 2014 concerning Plantations (Plantation Law). This research examines Gillies' view which states that corporations can be considered "persons" in the eyes of the law, which allows the imposition of criminal liability on corporations as legal entities. However, the concept of corporate criminal liability, especially through the doctrine of "Vicarious/Derivative Individual Liability," raises questions about justice and ethics in criminal law enforcement. This research uses legal document and literature analysis methods to evaluate the relevance, effectiveness and fairness of the concept of corporate criminal liability in the context of environmental damage caused by B3 waste. The research results show that in a theoretical context, criminal liability of corporations and corporate administrators has a different conceptual basis. However, in practice, the construction of vicarious or derivative individual responsibility often causes law enforcers to attribute corporate criminal liability to corporate administrators without considering personal fault. This creates ambiguity between the criminal liability of corporations and corporate administrators, considering that both have different conceptual bases.

Corporate Criminal Liability in India

In 21st Century, crimes committed by corporate bodies are creating more serious challenge for criminal justice system. Some vested interests which are controlling affairs of corporate bodies misuse the corporate body for commission of criminal acts to maximise profit. Corporate body is conferred with legal personality for regulation of its functions but it does not have physical body and mind of its own, thereby, problem arises for holding corporate body as criminal, and further, in imposition of criminal liability. Corporate criminal activities badly affect environment, health, safety and infra-structure development. Corporate entities are involved in corruption, forgery, money laundering, foreign exchange violations, money laundering, tax evasions, benami property transactions and other economic offences. Proper formulation of criminal justice actions and effective enforcement of corporate criminal liabilities are modern criminal justice requirements. Corporate bodies are business entities; economic wellbeing of society, prosperity of citizenry and development of nation depend on freedom of trade, amicable business environment and least regulation of corporate entities. Hereby, in determination and imposition of corporate criminal liability for betterment of society, it is necessary to make balance between to take stern actions to tackle corporate crimes and to take care to not hamper legitimate activities of corporate bodies. Law relating to corporate criminal liability in India will be analysed in this paper. Keywords: Criminal Justice System, Corporate crime, Corporate criminal liability, Natural person, Social wellbeing, Strict liability

Peculiarities of the nature of intentional non-payment for energy loss cost at electrical grid facilities

The research subject is theoretical and practical developments of the need for legislative regulation of a legal prohibition of intentional non-payment for energy loss cost at electrical grid facilities. The research object is social relations ensuring legal protection against electrical energy misuse by electrical grid facilities. The authors study the distinction between  the non-payment for actual energy loss cost and the similar civil wrongs. Special attention is given to subjective and objective signs which should be established in order to classify the offense as the illegal use of electric energy which has caused property damage to the energy supplier. The research methodology is based on the general dialectical, logicalm formal-legal, hermeneutical, and statistical research methods. The scientific novelty of the research consists in the fact that the imposition of criminal responsibility for deliberate non-payment for electric energy loss at electrical grid facilities is an area of concern in a current law enforcement practice as it requires the establishment of an objective and subjective parties to an offence and its distinguishing from other civil wrongs. The absence of a common strategy of imposition of criminal liability on those responsible can cause the growth of the number of illegal and unreasonable decisions during a pre-investigation review, and therefore, the growth of equivalent crimes. It explains the need for the optimization of legal measures by means of amending the current Resolution of the Supreme Court Plenum, or the article 165 of the Criminal Court of the Russian Federation with a new regulation on illegal use of electric energy. 

Is the 'Failure to Act' a Sufficient Basis for Criminal Liability under English Criminal Law?

There are instances in which English law imposes criminal liability on those who fail to act. Failing to act can have serious consequences. The criminal law operates using a general rule that a criminal act must be a positive, with good reason. However, in instances where a defendant has a responsibility, (assumed or imposed) UK criminal law imposes liability on those who fail to protect the person or property for which they are responsible. The imposition of criminal liability for failing to act raises concerns about the sort of society in which we would like to live. This article details the instances in which liability is, and should be, imposed for failure to act.

THE CONTENT OF QUALIFICATION OF CRIMES

УДК 343(2+7) The main provisions of the theory of qualification of crimes were developed in the Soviet times. Some of them, notably relating to the content of criminal law assessment, have become obsolete. Therefore, the article aims to interpret a new vision of the content of qualification. The methods used in the research include analysis, synthesis, induction, deduction, interview and statistical method. The authors note that in practice, in fact, general and specific signs of the crimes appearing in the criminal law are used in the qualification of crime. The authors question the use of "corpus delicti" in enforcement during the criminal legal evaluation. Corpus delicti was created in science to the full understanding and disclosure of the crime and its possible structures. It is impossible to carry out qualification and to resolve issues of criminal responsibility or exemption from it on the basis of scientific statements, which are not enshrined in law. Without knowledge of corpus delicti it is possible to hold a formal qualification of the offences and the imposition of criminal liability. This is due to the fact that all penal signs, sufficient for criminal liability provided for in the existing criminal law of the Russian Federation. The authors make the conclusion that qualification is carried out not in terms of corpus delicti, which is a scientific category, but on the basis of general features of crime – guilt, social danger, unlawfulness, liability to punishment, since it is them that are consolidated on the legislative level.

Corporate criminal liability in English law

Juridical regimes have been created in order to punish corporate wrongdoing. Although the imposition of criminal liability on corporations, as opposed to managers or employees, has generate considerable debate, commentators have not comprehensively analyzed why corporate criminal liability exists. Furthermore, it is not clear that corporate criminal liability is the best way to influence corporate behavior. Following sections will try to find answers to the above mentioned questions.

The European patent with unitary effect—what about unitary criminal sanctions for infringement?

Readers of EU Regulation No 1257/2010, which might enter into force someday, learn that certain European patents granted by the European Patent Office should, at the request of the patent proprietor, benefit from ‘unitary effect’. Such a ‘European patent with unitary effect’ shall provide ‘uniform protection’ and shall have ‘equal effect in all the participating Member States’. However, as far as I can see, neither the EU Regulation nor any other part of the ‘EU patent package’ deals with the question of criminal measures in case of infringement. This, in my view, does not mean that infringement of a European patent with unitary effect could not have criminal consequences. According to Article 2 of the European Patent Convention, a European patent shall, in each of the contracting States for which it is granted, have the effect of a national patent granted by that State. Therefore, the national criminal law provisions that apply in case of infringement of a national patent should also apply in case of infringement of a European patent with unitary effect. However, the penal sanctions differ from State to State. In Germany, according to the statute, intentional patent infringement may be punishable by up to five years’ imprisonment. In the UK, as I understand it, patent infringement is not a criminal offence. This means that the infringement of a European patent with unitary effect in Germany could be a crime, whereas the identical infringing act in the UK would have no criminal consequences. Does this mean that the European patent with unitary effect cannot provide the intended ‘uniform protection’ after all? Is the UK a better place for patent infringers than Germany because infringers in the UK are not subject to criminal sanctions? I cannot say. In 2001, when the International Association for the Protection of Intellectual Property (AIPPI) studied the question of criminal law sanctions (Q169), the UK group of the AIPPI was of the opinion that penal sanctions should not be extended to patents (AIPPI UK Group Report Q169). Apparently, it is not at all clear whether or not the imposition of criminal liability on patent infringers enhances protection. In Germany, the practical impact of criminal sanctions is very low. I have not heard or read of any case of imprisonment. One reason might be that patent proprietors seldom file a request for criminal prosecution because they do not expect to achieve anything that could not be achieved—or achieved more quickly—by civil proceedings. Criminal prosecution can take a long time. This is probably because public prosecutors, due to the low number of cases, have little experience in patent matters which are typically technically and legally complex. In addition, proof of wilful intent can be difficult. However, there have been cases in Germany in which a request for criminal prosecution—justified or not justified—has caused a lot of trouble for the alleged infringer because alleged infringing products have been seized, especially during trade fairs in Germany. However, I doubt whether such cases are a good argument in favour of imposing criminal liability because it appears to me that the more appropriate measure of the patentee would be a request for a preliminary injunction or for a measure to preserve evidence by a civil court. The proprietors of patents in Germany do not seem to need an additional deterrent under criminal law in order to enhance protection. Therefore, I would assume that the abolishment of criminal liability for patent infringement would not have a noticeable effect. The differences within the EU lead to the question of harmonisation. According to Article 61 of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS Agreement), World Trade Organization (WTO) members shall provide penal sanctions in cases of certain wilful trade mark counterfeiting or copyright piracy. WTO members may provide for criminal sanctions for patent infringement, but they are not obliged to do so. In 2005, the European Commission proposed a Directive on criminal measures (2005/0127/COD) which also applied to patents. However, in 2007, the European Parliament agreed that such a directive should not apply to patents. Finally, in 2010, the European Commission communicated the complete withdrawal of the proposal. The birth of the European patent with unitary effect and the hopefully effective Unified Patent Court system is a good time to reconsider harmonising the penal sanctions for patent infringement in Europe—maybe by abolishing them unitarily.

AI v. IP - Criminal Liability for Intellectual Property IP Offenses of Artificial Intelligence AI Entities

Most legal systems protect IP rights through criminal law, amongst various legal protections. This legal situation reflects the society's wide interest in protecting IP rights. When IP rights are violated, and the violation fulfils the basic requirements of the relevant offense, the society may indict the violator, regardless the violator's identity (corporation or human). But what if the violator is an AI entity? Most modern AI entities do have the technological capability of violating IP rights. Illegal copying of software is a common example. Could the AI entity itself be criminally liable, beyond the criminal liability of the manufacturer, end-user or owner, and beyond their civil liability? The proposed research suggests the examination of a positive answer. Using the current definitions of criminal liability, the imposition of criminal liability upon AI entities for committing IP offenses is quite feasible. The proposed research suggests feasible solutions for sentencing AI entities as well.

The Moral Foundations of Criminal Liability

This paper seeks to provide a theoretical account of the moral foundations of criminal liability. It does not seek to provide a general theory of criminalization. Rather, it aims to identify some moral principles and concepts which serve as a foundation and justification for criminalization and the imposition of criminal liability. Central to these moral foundations are the principles of ‘individual autonomy’, ‘individual rights’, ‘the principle of welfare’ and the ‘harm principle’. This chapter undertakes to explore this issue through addressing the general question of ‘what is a crime?’ This question involves examining why a particular type of behaviour is considered to be criminal by the law, or what considerations need to be taken into account in order to render a particular type of behaviour criminal, and to consequently justify the imposition of criminal liability.

Match Fixing: Threat to Indian Sport's Integrity

Sport is a competitive physical activity aimed to use, maintain or improve physical ability and provide entertainment to participants. Evolution of sports has marked a new era of providing worldwide entertainment to the spectators and the audience. The content of entertainment factor has increased to such a frightening extent that now sports has deserted its true virtue and entered the entertainment field solely. The Indian Premier League is the biggest example of this where rich businessmen to top celebrities invest their golden fortune to entertain the audience via cricket. Such a scenario, where millions of rupees are at stake, is the nesting ground for corruption, cheating and gambling. In organized sports like cricket, football, basketball etc. match fixing and gambling has become the part and parcel. The aim of this paper is to critically examine the existing legal framework and concepts related to match-fixing in India and urge imposition of criminal liability on match-fixing by effective legislation specific to this issue. After doing so, this paper provides numerous suggestions that can be enforced as transitory measure until such a law is made and also after commencement of the same law.

The Prospective Role of Anti-Corruption Conventions in Curbing Transnational Bribery by Corporations

This paper argues that the current framework of multilateral efforts to curb transnational bribery by corporations is unable to tackle the problem of transnational bribery by corporations effectively. Corruption, transnational bribery being one example, is a multifaceted and complex phenomenon often deeply rooted in the social, political, and economic systems of most African countries. Legislative strategies to combat transnational bribery have both a supply and demand side. There are therefore supply side solutions and demand side solutions to curbing transnational bribery by corporations. The supply side solutions seek to impede prospective bribe givers from offering or paying bribers. The demand side solution discourages prospective bribe takers from accepting or requesting bribes. Initial efforts at curbing bribery focused on the demand side, with most countries enacting legislation prohibiting the receipt of bribes. In recent years, there have been efforts to ratchet up supply side solutions to transnational bribery largely through the efforts of the Organisation for Economic Cooperation and Development (OECD) member countries and more recently with the passage of the UN Convention on Corruption. The focus of these supply side strategies has been to curb transnational bribery by the imposition of criminal prohibitions on corporations engaging in transnational bribery. These supply side strategies have been criticised mainly with regard to the disparities in the ability of States to respond to the problem of transnational bribery. Unfortunately, these responses are widely acknowledged as being inadequate in curbing transnational bribery by corporations. A simple comparison of the levels of compliance with the various multilateral conventions indicates that where the targets set by the agreements were low, the level of compliance was high. This is unfortunate because although these weak conventions have garnered a high level of compliance, they have provided little or no effective reduction in the levels of transnational bribery. In many respects, the analysis of the patterns of enforcement of these transnational bribery prohibitions suggest that compliance with these conventions are the result of political expediency rather a sustained commitment on the part of States to deter their corporations in engaging in transnational bribery. The paper develops an alternative explanation for the ineffectiveness of transnational bribery prohibition arguing that the current liability regime regulating corporations has ossified outdated perceptions of the corporation. This liability regime treats corporation as a fiction for deriving liability, underestimating the complexity of the modern. Similarly, the liability regime treats the corporation as an entity for the purposes of imposing liability, exaggerating the unity of the corporation. These formalistic perceptions simultaneously bolster the capacity of the corporation to evade liability and constrain the imposition of criminal liability on the individuals within the corporation responsible for transnational bribery. The paper advocates a different focus involving an augmented analysis of the primary participants in transnational bribery transactions, corporations, and an alteration of the existing regulatory regime to alter the behaviour of these corporations.

Corporate Criminal Liability: What Purpose Does It Serve?

Corporate criminal liability has grown rapidly over the last two decades both in the United States and overseas. Although the imposition of criminal liability on corporations, as opposed to managers or employees, has generated considerable debate, few have questioned in depth the fundamental basis for imposing criminal liability on corporations. After all, corporations cannot be imprisoned. Furthermore, it is not clear that corporate criminal liability is the best way to influence corporate behavior. This paper compares the costs and benefits of corporate criminal liability with the costs and benefits of other possible liability strategies, including various forms of corporate civil liability, managers' personal liability, third-party liability, and administrative sanctions, in an effort to determine the best strategy or mix of strategies for society. After summarizing the historical development of corporate criminal liability and surveying the current legal landscape, the paper examines the justifications for corporate criminal liability liability. The paper argues that corporate civil liability can obtain the desirable features of corporate criminal liability (e.g., criminal liability's powerful enforcement and information-gathering dimensions) while largely avoiding its undesirable features (e.g., criminal procedural protections and criminal sanctions' stigma effects). The paper concludes that a modified form of corporate civil liability could make corporate criminal liability obsolete by garnering the advantages of corporate criminal liability while avoiding or mitigating its disadvantages.