Personal Liability Research Articles

The Effect of European Union Law on the Criminal and Quasi-Criminal Liability of Legal Persons in Estonia

The punitive competence of the European Union encompasses both criminal law and, in the form of administrative sanctions, quasi-criminal law. Now undergoing vast changes amid rapid development, the latter field of Union legislation is anything but systematic. The sporadic evolution of EU punitive law recently led to the European Court of Justice judgement in the case Deutsche Wohnen, wherein the substantive provisions for liability of legal persons in Germany were found to be in contradiction with European Union law. The article gives an overview of the European Union’s legislation on criminal and quasi-criminal liability of legal persons, presents reflections on the Estonian experience, and articulates conclusions from the Deutsche Wohnen case.

О возможности признания публично-правовых образований и лиц, выступающих по их специальному поручению, контролирующими должника и привлечении их к субсидиарной ответственности

One of the central legal concepts of insolvency (bankruptcy) as a complex branch of legislation in Russia is the so-called “controlling debtor”, which appears in disputes on bringing to subsidiary liability in bankruptcy proceedings. Traditionally, legal science and judicial practice consider as such individuals and legal entities that may determine the debtor’s behavior by virtue of legal or actual affiliation with the debtor. However, public-law entities and persons acting on their special instructions in the debtor’s management bodies escape from the field of view of doctrine and practice. In this connection, the authors in this article analyze the possibility of bringing public-law entities and persons acting on their special instructions to subsidiary liability within the framework of the Federal Law “On Insolvency (Bankruptcy)”. In the course of the study, the authors come to the conclusion that it is necessary to distinguish between subsidiary liability of public legal entities and persons acting on special instructions in the debtor’s management bodies. on special assignment in the debtor’s management bodies. In addition, the authors give a negative assessment of the possibility of bringing to subsidiary liability persons acting in the management bodies of the debtor by special order and on behalf of publiclaw entities, since there is no guilt - one of the mandatory elements of the offense. The relevance of the article consists in revealing the peculiarities of bringing to subsidiary liability of persons acting on special assignment on behalf of public-law entities.

Юридическая хроника

October Chronicle offers comments on the Durov case (from the perspective of Information Law), the draft law on notarisation of real estate transactions, the law on expanding the grounds for suspending criminal proceedings, the cancellation of preventive measures and exemption from criminal liability for persons who have expressed a desire to join the military service under contract, as well as the second law, the adoption of which continued the reform of the Russian tax system.

Abuse of right, unequal counter-execution, artificial debt in the context of challenging of debtor’s transactions under bankruptcy proceedings

The ambiguity of interpretation of the rules applied when challenging transactions within the framework of the initiated bankruptcy case and the absence of clear criteria for the grounds for challenging debtor’s transactions determine the reasonability of a deep comprehensive theoretical study of such categories as abuse of rights, unequal counter-execution, and artificial debt. The conducted analysis of judicial practice allowed concluding that invalid debtor’s transactions concluded with abuse of rights in order to create artificial debt or with unequal counter-execution are identified by signs, based on the personal conviction of a judge, but still allowing them to be established with a high degree of reliability. Such signs, in particular, include: economic inexpediency of a transaction, when, for example, in the presence of financial difficulties, the debtor sold the capital goods, thereby depriving himself of his main activity and profit; transfer of funds by the debtor in transit through friendly organizations, returned to the debtor in the form of a loan from a controlled organization; raising of a cash loan from individuals who do not have the financial ability to provide a loan; the supplier’s inability to deliver goods for which the debtor has incurred a debt; the absence of information about the transaction in the accounting statements of the debtor and its counterparty, etc. The authors believe that the absence of grounds for liability for intentional actions to create artificial debt and abuse of rights, the absence of clear criteria for the equivalence of counter-execution lead to the fact that unfair participants in economic turnover receive an unjustified benefit. In this regard, the authors propose to define more clearly in the law special grounds for challenging debtor’s transactions for the intentional creation of artificial credit debt, the withdrawal of debtor’s assets, and to establish grounds for liability and consequences for unfair persons.

Bridging the Gap Between Labour Law and Company Law: Wedderburn’s Legacy: An Appreciation

Abstract The paper surveys the extensive writings of the late Professor Lord Wedderburn and explores the interactions between company law and labour law. A set of case studies illustrates labour law’s relative weakness in the contemporary corporate law context. Whilst it does change over time, company law has largely remained consistent with its two fundamental principles of separate legal personality and limited liability and its complementary prioritisation of the shareholders’ interests. These stable features provide a foundation that grants powerful corporate actors considerable freedom to pursue their interests and to organise their corporations however they please with little regard for those providing labour. Labour law finds itself constantly having to adapt to changing economic (and connected political) realities, fraying further the already threadbare protections for workers, especially in the context of global trade. With modern globalisation and financialization, a variety of “shareholders” and increasingly byzantine corporate structural arrangements have emerged presenting few opportunities to mitigate the impacts of their harmful activities. Investors and managers extract value with exploitative and detrimental consequences for the workers and other stakeholders. Fundamental reforms to company law are required for more effective workers’ voice and protection. Key words Lord Wedderburn, company law, labour law, employment law.

Impact of Un-ethical Decision Making in Managing Teacher Disciplinary Matters in Public Secondary Schools in Malawi

Public administration inclusive the education sector, is catalyst for national development, it hinges citizen’s intellectual and professional development. Malawi vision 2063, for self and reliant nation incorporates New public management that calls for competent public administrators to influence delivery of quality service to Malawians. The study examines the impact of Heads unethical decisions in managing teacher disciplinary matters in public secondary schools in Malawi a case of Mzuzu City. Research implores mixed methods exploratory sequential under pragmatics paradigm. Quantitative survey uses quota sampling of estimated 9 respondents from each school within the 22 public secondary schools in Mzuzu City. Sample size of participants came to approximately 200 participants out of 514 total secondary school teachers’ population. Within each school, random sampling was utilized to identify 9 to 10 teachers. Qualitative used purposive sampling to identify one respondent from each of twenty-two secondary schools. Quantitative used semi-structured questionnaire while qualitative used interview guide to collect data. Qualitative data was transcribed and coded, codes were grouped into sub-themes and sub-themes were grouped into themes which answered research questions aided by Nvivo application. Quantitative data was analyzed using descriptive statistics which ended up producing tables and graphs through SPSS 20. Through bounded rationality theoretical framework, findings reveal that respondents agreed to have knowledge of disciplinary procedures. Implying that teachers expect total compliance from responsible authorities to handle teacher disciplinary matters professionally. However, Heads gave oral warnings, written warnings, suspensions and interdictions. Heads deliberately flouted the procedures. Heads unethical decisions affected teaching and learning industry; where teachers stopped teaching for a long period of time, half pay reduced victim’s economic dignity, students suffered because they had no other teachers to teach them, some teachers left the school for better place, demoralized staff, litigations and government compensated victims of arbitrary decisions, victim teachers were sociologically affected because no other teachers wanted to associate with suspended/interdicted teacher, violation of Constitutional rights and school poor performances. The impact is negative thwarting the aspirations of Malawi Vision 2063 through derailing of quality human resources, compromised future generation and continuous breeding of mediocrity. Public service administrators deliberately bring disorder in the system for personal interests. They are committing crimes of abuse of office and neglect of official duties. Citizens be enlightened to call for accountability and transparency to those acting with mediocrity of negligence, corruption and compromised character. There must be personal liability to compensate for mediocrity.

Рецензия на монографию Федорова Александра Вячеславовича «Уголовная ответственность юридических лиц в постсоциалистических государствах Азиатско-Тихоокеанского региона» (Москва : Юрист, 2022. 144 с.)

The review is dedicated to the monograph by A.V. Fedorov on the criminal liability of legal entities in the post-socialist states of the Asia-Pacific region, specifically China, Vietnam, and Mongolia. The review examines the author’s views on the content of criminal liability of legal persons in these states and presents the reviewers’ opinions on specific aspects of the problem.

The work that the law does in education outside the classroom: part 1 – the law and student safety

ABSTRACT A comprehensive national study investigated education outside the classroom (EOTC) in Aotearoa New Zealand and revealed the negative impact of safety legislation on EOTC. To understand the work the safety legislation does, we analysed data from a survey and interviews, and developed a framework of spheres of responsibilities: student safety; legislative requirements; staff competence; and paperwork. Findings show that health and safety legislation has reduced the amount of EOTC in many schools. There was strong evidence that educators cared for the learning and safety of students, and this generated anxiety for staff. This anxiety was further heightened by threats of personal legal liability. Instead of threats, some respondents felt that teachers’ commitment to student learning through EOTC should be celebrated. Other respondents strongly continued to support EOTC. The contribution of school culture, EOTC champions, effective systems and teacher education are seen as pivotal to reducing anxiety and sustaining EOTC.

Smart Robots and Civil Liability in Jordan: A Quest for Legal Synthesis in the Age of Automation

This paper embarks on a pivotal scholarly journey to scrutinize the civil liability implications of Artificial Intelligence (AI) within the Jordanian legal framework. As AI transforms from a speculative concept into an omnipresent reality, it presents unique jurisprudential challenges, particularly civil liability. This study aims to bridge the jurisprudential vacuum in Jordan, where an absence of judicial precedents highlights the urgency for legal exploration in this emerging field. Adopting a doctrinal legal research methodology, the study rigorously examines Jordanian liability theories and their applicability to AI and undertakes a comparative analysis with more advanced legal systems in AI regulation. The paper navigates the intricacies of AI in the context of traditional Jordanian legal theories, such as objective and personal liability theories. It extends to explore the challenges of attributing liability in the age of AI. Key findings reveal significant inadequacies in Jordan’s current legal provisions to address AI-induced liabilities, the disconnection between civil liability and AI accountability, jurisdictional ambiguities, and challenges in applying traditional legal concepts to the unpredictable nature of AI. The study proposes granting AI legal personality, legislative intervention, enforcing global accountability standards, advocating for international cooperation, and exploring technological limitations with ethical programming. This research contributes profoundly to academic discourse and policy formulation, particularly in the Jordanian context, highlighting the need for a comprehensive, adaptable, and robust legal framework that addresses the unique challenges posed by AI and robotics in the legal domain.

THE CONDITIONS OF CRIMINAL LIABILITY OF THE LEGAL PERSON

In this article I tried to summarize essential aspects regarding the criminal liability of the legal person. People can be involved in criminal legal relations, both individually and organized according to the law in the form of legal entities. One of the subjects of criminal liability according to the Criminal Code in force is the legal person. Since it is an active subject of the crime different from the natural person, naturally the conditions for the existence of his criminal liability are also different. Also, the legal person attracts a distinct form of liability, with specific features, which is subject to its own rules, separate from those applicable to the natural person. However, like the natural person, the legal person is subject to compliance with the fundamental principles of criminal law. The legal person participates as a distinct legal subject in the most varied legal relationships: civil, commercial, financial, administrative, banking and criminal. The introduction into Romanian criminal law of the criminal liability of the legal person took place through Law no. 278/2006, amending the Criminal Code from 1968. Currently, the Criminal Code in force dedicates Title VI to this legal institution entitled "Criminal liability of the legal entity". I chose this theme considering the challenges it entails and the issues it raises. I tried to answer some of them, such as the premises of the criminal liability of the legal person, showing how the criminal sanction was reached from the historical perspective of the legal person, I then explained the necessity that determines the regulation of such liability in criminal law, I explained the notion of a legal person, I have shown the conditions under which the criminal liability of the legal person is engaged and the way in which legal persons are sanctioned from a criminal point of view. I also presented a case in which the criminal prosecution of this subject of criminal law is practically illustrated.

CRIMINAL SANCTION OF THE LEGAL PERSON

The criminal liability of the legal person is not a new institution in terms of criminal law, being a necessity of the current times in which legal persons are more and more involved in criminal resolution. Many times, natural persons resort to the moral side of individuals to commit illegal acts or give birth to legal persons aiming to avoid criminal liability through them, by interposing the legal person to the completed act. Thus, the criminal activity of the legal person represents the specific actions of one or more natural persons.

일상생활배상책임보험의 보상요건 및 설명의무에 관한 종합적 고찰 - 청주지법 2022. 12. 22. 선고 2021나55269 판결을 중심으로

Daily life liability insurance is a personal liability insurance sold in the form of a special agreement in addition to long-term insurance products. It is a very useful insurance product that covers damages due to general activities that can occur widely in everyday life with an inexpensive insurance premium of less than 1,000 won. At this time, the concept of 'daily life' means life in 'normal times', and is distinguished from 'job performance' that is for 'maintaining a living' or requires professional knowledge, experience, and skills. Of course, the scope of 'daily life' will be determined according to specific circumstances, but at least in the process of determining it, the group performance and homogeneity of the risk consisting of a large number of unspecified general policyholders should not be impaired. In the case where the insured, who usually suffered from depression and paranoid schizophrenia, jumped from a high-rise building and shocked the victim (plaintiff), who just happened to pass under it, the damage caused by the insured's actions was judged as an accidental accident in the first trial. However, in the target judgment, it was judged that the act of the insured jumping out of the building with the intention of suicide or jumping off was not the “general act that may occur in everyday life” mentioned above, but was difficult to regard as being included in the category of “daily life”. The target judgment rejected the plaintiff's claim for damages, considering that it did not meet the former requirements among the usual life and accidental accidents, which are the representative compensation requirements of the daily life liability special agreement. The insured's above actions outside the certain boundaries of daily life are very valid in that they harm the homogeneity of insurance groups. Furthermore, in this paper, an analysis is conducted to clearly distinguish the concepts of 'daily life' and 'job performance' of the special agreement for daily life liability through various lower court rulings, and the purpose and meaning of a number of reasons for indemnification are considered for each type. The results of this review are linked to the obligation to explain the terms and conditions, which are sharp disputes between the insurer and the insured in the stage of exemption and liability for compensation after an insurance accident. Most of the reasons for exemption from the Special Agreement on Daily Liability for Compensation are subject to the obligation to explain as it directly affects the interests of the policyholder and determines whether or not to conclude a contract depending on whether or not to explain it. However, 'daily life' is a concept accepted by social norms as a daily activity of the general public. Even if the insurer does not explain separately, it is reasonable to assume that the insured can fully predict or understand the contents and is not subject to the obligation to explain. This is especially true considering that the Special Agreement on Daily Liability for Compensation, which is a liability guarantee incidental to long-term non-life insurance products, guarantees various risks in daily life with an insurance premium of less than 100 million won per month.

Practices in the Field of Disciplinary Liability of Convicts While Serving a Sentence of Imprisonment: Analysis of International Experience

The article examines the issue of international experience of disciplinary liability of persons sentenced to imprisonment on the example of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), the European Prison Rules and other international acts, and also examines the experience of individual countries. The purpose of the study is to identify the main standards and "good practices" of applying disciplinary sanctions to persons sentenced to imprisonment. The relevance of the study is stipulated by the need to implement international standards in the penitentiary system of Azerbaijan, taking into account the latest monitoring data on the practice of applying disciplinary sanctions to prisoners. The study was carried out within the framework of comparative penology using the methodology of an integrated interdisciplinary approach to the issue under study. Based on the results of the study, the author identified the main prohibited practices: corporal punishment, placement in an unlit cell, deprivation or restriction of food and drink, forced labour, collective punishment of prisoners, any cruel, inhuman or degrading treatment; and permitted practices: warnings, reprimands, telephone access, prohibition of short-term visits, prohibition of shopping, prohibition of receiving parcels and correspondence, solitary confinement or solitary confinement as a last resort. The author also emphasises the rights of prisoners to information on the rules of conduct in the penitentiary institution, to participate in a disciplinary hearing and to appeal against a decision to impose a disciplinary sanction, which constitutes the scientific novelty of the study and areas for further research.

ЦИВІЛЬНО-ПРАВОВА ВІДПОВІДАЛЬНІСТЬ ПЕРСОНАЛУ ДЕРЖАВНОЇ КРИМІНАЛЬНО-ВИКОНАВЧОЇ СЛУЖБИ УКРАЇНИ

The article analyzes the basic concepts and grounds of civil liability, both in the general sense and for the personnel of the SCES (State Criminal and Executive Service of Ukraine). The author reveals the content and methods of compensation for damage caused by an offense during service by persons of the rank and command staff of the SCES of Ukraine. The civil liability of persons of the rank and command staff of the SCES of Ukraine is one of the types of legal liability that arises for the commission of a civil offense, which is understood as an unlawful act or omission of a person that violates the norms of civil law or the terms of a contract, and with which the contract or law links the emergence of civil liability. According to the fact that the activities of SCES of Ukraine personnel are closely related to a wide range of different rights and obligations, and therefore they are entitled to use coercive measures of physical influence, circumstances may arise in which misconduct may result in moral, property and physical harm to certain categories of citizens. Departmental normative-legal acts do not provide for any type of legal liability other than disciplinary, especially civil liability. Therefore, when committing a criminal, administrative or civil law offense, persons of the rank and command staff of the SCES of Ukraine are liable on a general basis. It is proved that compensation for damage can be made in kind or by way of monetary compensation. This means that in case of guilt is proved, the SCES of Ukraine personnel have the opportunity to choose the type of compensation of damage. The article concludes with a definition of civil liability and outlines the ways to improve the enforcement of the rights of SCES of Ukraine personnel if it is necessary to implement the principle of compensation. Key words: staff, State Criminal and Executive Service of Ukraine; persons of the rank and command staff; liability; civil liability; legal liability; damage; losses; compensation for damage.

Capitalized payments in the amount of subsidiary liability of persons controlling the debtor for the legal entity's obligations

Capitalized payments in the amount of subsidiary liability of persons controlling the debtor for the legal entity's obligations

The Business Judgment Rule as a Protective Armor for Directors’ Responsibilities: A Comparative Study Among Mauritius, United Kingdom, and United States

Abstract The business judgment rule (BJR) is a corporate law doctrine that protects a decision of directors from fairness review by a court of law unless there is sufficient evidence that the director has breached his fiduciary duties or that the decision-making process is tainted. Given that the BJR acts as a protective armor for directors as their personal liability is not engaged for a corporate decision irrespective of its outcomes provided that some requirements are satisfied, the purpose of this paper is to critically assess whether directors of Mauritian companies are sufficiently protected and encouraged in the exercise of their duties. To achieve the research objective, the black letter research method was adopted to collect secondary data and a comparative analysis with some other countries’ rules on business judgment was conducted. A desk-based approach and content analysis were used to collect this information. The countries selected for the comparison are the United Kingdom and United States. Mauritian law does not afford protection to directors for decisions taken based on business judgment whereas this research has demonstrated that the laws of other countries being the United Kingdom and the United States as well as their judicial instances both recognize and apply the BJR.

The Existence of Individual Companies As Legal Entities In Micro and Small Enterprises In Indonesia: A Review of The Problems of The Alter Ego Doctrine

The enactment of the Job Creation Law affects the provisions of Limited Liability Companies. The mechanism for establishing an Individual Company which is explained implicitly in the Company Law and the Job Creation Law raises issues related to the process of organ responsibility in an Individual Company which states that directors can concurrently hold positions as shareholders and vice versa. One of the problems of the presence of Individual Companies in MSEs in Indonesia is the birth of Alter Ego conditions. The solution to limit the unlimited liability of corporate organs is that the government needs to strengthen and reinforce the doctrine of Piercing the Corporate Veil for Individual Companies and provide legal certainty regarding the regulation of corporate organs in the Company Law and Government Regulation No. 8 of 2021. This article examines the existence of individual companies in the context of micro and small businesses in Indonesia. The focus of the analysis lies on the concept of the alter ego doctrine which often becomes a problem in business practice. This research utilizes a document analysis approach and literature study to explore the legal and practical implications of the alter ego doctrine on individual companies in Indonesia. The analysis shows that the alter ego doctrine has a significant impact on the personal liability of micro and small business owners. The implications of these findings are discussed in the context of business regulation and legal protection for micro and small business owners in Indonesia.

Trustee personal liability for contaminated land remediation: the UK position

Abstract Part IIA of the Environmental Protection Act 1990 creates a liability risk for trusts and trustees. Trustees may indeed be found liable pursuant to Part IIA’s definition of an “owner” of contaminated land. This definition includes trustees to avoid the situation of people evading liability by transferring affected land into trust funds. However, the risk to trustees is sufficiently low. The law shows that trustees possess a lien over their trust funds that can be used to indemnify liabilities. Furthermore, Part IIA’s proportionate approach to sustainable development considers the “hardship” that liability can cause to trustees and obviates the risk.

Judicial Review of the Application of Corporate Legal Veil in Malaysia and Indonesia: A Legal Comparison

This study aims to find a comparison of the Legal Corporate Veil between Malaysia and Indonesia. This research is a normative legal research as a literature review. It is found that in corporate law both in Malaysia and Indonesia there is a principle of limited liability between shareholders and company directors known as Separate Legal Entity. This principle essentially asserts that a person's responsibility in a company is limited to their responsibility within the company and does not extend to personal liability. In Malaysia, this regulation is governed by Section 20 of the Companies Act 2016. Meanwhile, in Indonesia, this principle is scattered in the provisions of the Limited Liability Company Act (UU PT) applicable to shareholders, directors, and commissioners. However, this principle may become inapplicable in certain cases, known as Piercing The Corporate Veil. In Malaysia, this is regulated under the Companies Act 2016 as well as several judicial decisions. In Indonesia, this principle becomes inapplicable if shareholders act in bad faith by using the company for personal gain and are involved in legal actions undertaken by the Company. One form of protection from personal liability for Directors and Commissioners is implemented based on the Business Judgement Rule principle. Personal liability does not apply if Directors and Commissioners can prove that the company's loss is not due to their negligence, they have acted in good faith, have no conflict of interest, and have taken action to prevent losses. In this study, there is also corporate responsibility outside the existing Limited Liability Company Law based on business and economic developments decided by The Constitutional Court.

Exemption from Criminal Liability and Punishment in Connection with Entry into Military Service: Consequences for Victims of Crime

The relevance of the study is due to the fact that human resources are involved in the resolution of international conflicts . In the Russian Federation, persons suspected, accused and convicted of committing crimes are sent to military service to participate in hostilities . This process is legitimized by the norms of federal legislation . On June twenty-fourth, 2023, the Federal Law No . 270-FZ “On the Specifics of Criminal Liability of Persons involved in a special military operation” was adopted . Federal Law No . 64-FZ has recently entered into force “On Amendments to the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation”, adopted by the State Duma on March 19, 2024 to regulate in these codes the specifics of the exemption from criminal liability of persons called up for military service on mobilization or in wartime .Research hypothesis: a new type of exemption from criminal liability and termination of criminal prosecution may negatively affect the interests of other persons - victims, their legitimate rights and interests may be negatively affected . In general, the criminal background may worsen, and trust in the state may decrease .Purpose: to provide a scientific forecast of the consequences of legislative changes related to the suspension, termination of criminal prosecution, exemption from criminal liability and punishment in connection with conscription during mobilization or during wartime, or the conclusion of a military service contract during mobilization, during martial law or during wartime .