Liability For Offenses Research Articles

ЭФФЕКТИВНОСТЬ ДИСЦИПЛИНАРНОЙ ОТВЕТСТВЕННОСТИ ГОСУДАРСТВЕННЫХ СЛУЖАЩИХ В РОССИЙСКОЙ ИМПЕРИИ

The article considers disciplinary liability of officials of the Russian Empire from the point of view of assessing the effectiveness of its application. The author concludes that the establishment of an exhaustive list of disciplinary offences in the 19th century legislation was primarily due to the fact that disciplinary liability had not yet been separated from criminal liability, had a negative impact on it as a means of influencing the conduct of officials. Thus, the existence of an exhaustive list of disciplinary offences made it difficult to impose effective disciplinary measures on officials who did not fully cope with their work, but whose actions did not fall within any particular composition. At the same time, certain rules on disciplinary liability of that period deserve attention and the experience of their use can be taken into account at present. In particular, the legislation of the Russian Empire flexibly regulated the admission to public service of persons dismissed on guilty grounds: depending on the penalty applied, they could re-enter the service immediately; three years after the enforcement of the penalty, or have been deprived of that right. The article justifies that this experience can still be applied to public servants dismissed for loss of trust.

О первоочередных мерах органов государственной власти России в связи с распространением коронавирусной инфекции

The article deals with the work of Russian state authorities during the period when a new coronavirus infection (SARSCoV- 2, previously – 2019-nCoV) threatens to spread and enter the national territory. The algorithm of work and the practical measures taken to combat infection from the point of view of the requirements of the national security Strategy of the Russian Federation, as well as Federal and regional regulatory legal acts in terms of protection are analyzed. The issues of the formation of special temporary governing bodies, the goals and objectives of their activities, as well as the forms of work used: monitoring the situation, rulemaking, interagency cooperation, building up forces and means to combat the pandemic, using the information and technical base, informing the population, supporting certain sectors of the economy and certain categories of citizens are considered. Conclusions are drawn about the organized, complex and interdepartmental nature of the events, the need to improve legislation in terms of establishing legal liability for offenses under the quarantine regime, creating conditions to prevent unjustified price increases for certain types of goods, systematically informing the population and preventing the spread of false rumors, the need to support certain sectors of the economy and certain categories of citizens.

Insured Capacity: Owner‐Designee Directors Should Not Take Their D&O Coverage for Granted

Daniel J. Struck is partner at Culhane Meadows, a Dallas‐based law firm serving major corporations and emerging companies across industry. In this article, he discusses some of the complexities of directors and officers liability insurance and the protections and limitations it can offer corporate boards in light of a changing, and newly activist, corporate landscape.

Director Obligations to Implement and Monitor Oversight Systems

Stephanie Resnick is chair of the Directors & Officers Liability & Corporate Governance Group at Fox Rothschild LLP. Carl Neff is a partner in the Litigation practice at Fox Rothschild. In this article, they explore the oversight responsibilities of boards of directors in light of a major recent court decision.

임원배상책임보험 약관의 해석과 명시 · 설명의무 - 대법원 2019. 1. 17. 선고 2016다277200 판결을 중심으로 -

임원배상책임보험 약관의 해석과 명시 · 설명의무 - 대법원 2019. 1. 17. 선고 2016다277200 판결을 중심으로 -

Feeling fine! Harmonisation and inconsistency in EU supervisory authority administrative fines

GDPR has a stated goal of harmonisation in general, and of penalties in particular. This article demonstrates that under GDPR penalties, and especially fines, are inconsistently applied across EU member states, and that GDPR has left many of the most important topics relating to fines to member state legislation. The article starts by showing that the One-Stop Shop mechanism actually incentivises forum-shopping. Next, it is shown that the method of calculating fines is inconsistent and unsettled. Different language versions of GDPR lead to different conclusions as to how to calculate an undertaking’s revenue, and the meaning of an undertaking is neither entirely consistent within GDPR itself, nor across member states. The role of regulators is likewise unclear, and in some member states the regulators do not even have the power to impose an administrative fine under GDPR. The role of non-regulators, such as data subjects and representatives of classes of data subjects similarly lacks consistency across member states. Public bodies are another area of disharmony between member states: the scope of applicability of GDPR to public bodies is a matter for member state legislation, and the outcomes are in fact different across member states. Additional areas discussed include: the responsibility and liability of directors and officers of a company; the enforceability of a contract for insurances against GDPR fines; choice of law clauses as governing data being processed under GDPR; and issuance of warnings prior to imposition of fines. In all these areas, GDPR itself and member state law is inconsistent and is far from harmonised. Finally, the role of the economic model of the infringing party in calculation of the applicable fine is unsettled, and is left to member states, and is therefore similarly at odds with a goal of harmonisation.

Limits of criminal liability of police officers - historical-legal study

Misuse of power is a crime that threatens the proper functioning of state institutions, undermining trust in the system of power, and creates a particular sense of injustice among the citizens who come into contact with it. Service in the Police puts before each officer a number of duties, resulting from the provisions of law contained in acts, regulations as well as decisions and orders of superiors. Few professions are so ethically demanding and so full of moral conflicts. No other profession requires making moral judgements about the behaviours of other people, and using in response to these behaviours appropriate social reactions, based on moral reasons. The crime of abuse of function involves the exceeding of powers or failure of a public officer to perform his duties, and such abuse of power must be to the detriment of a public or private interest. Acting to the detriment means that the offender's conduct poses a threat to any public or private good. The crime of abuse of power consists in the action of an entity having specific duties and powers in the public sphere, where that action consists in exceeding the powers or failing to fulfil the obligations to the detriment of a legally protected good. In each case a number of activities are required to establish the source of the right or obligation of a public officer to take specific actions, to define the addressee and the content of the right or obligation, and in the event that the public officer is under an obligation to act, also to determine the moment of updating the obligation. Furthermore, an indication of the part of the actual conduct of the offender which was directly related to a specific prohibition or order and a demonstration that the actual conduct of a public officer was contrary to that prohibition or order. Exceeding the powers by a public officer should be considered a specific type of factual and formal event, when there is a breach of an official order or prohibition binding on this person.

Director and officer liability protection and firm value: Unintended consequences

This study sheds light on some of the unintended consequences of directors’ and officers’ (D&O) liability protection provisions. In particular, it examines whether D&O protection affects firm value. Using a sample of U.S. firms, we find that firms with greater director liability protection have significantly lower firm value as measured by Tobin's Q, and that the negative effect of director liability protection on firm value is more pronounced in the period before the Sarbanes-Oxley Act of 2002. These findings are consistent with the notion that director liability acts as a strong corporate governance mechanism and that protecting directors and officers does not preclude them from undertaking sub-optimal investments and less risky projects.

Prawne aspekty ochrony małoletnich przed nikotynizmem

Ochrona małoletnich przed nikotynizmem obejmuje zakaz sprzedaży im wyrobów tytoniowych, jak też zakazy sprzedaży w miejscach, w których oninajczęściej przebywają. Ważne są tu także ograniczenia co do reklamy tego typu wyrobów. Ich złamanie skutkuje odpowiedzialnością za wykroczenia.Ochrona ta obejmuje nie tylko tradycyjne wyroby tytoniowe, ale także papierosy elektroniczne.

History of law on traffic offences in the criminal code of Kazakhstan

The author investigates the history of development of criminal legislation on liability for offenses related to violation of traffic safety rules or operation of transport, from 1917 to 2014. The paper analyzes the decrees and resolutions of the Soviet period in the field of traffic safety, articles of the Criminal code of the RSFSR as amended in 1922 and 1926, acting on the territory of modern Kazakhstan until January 1, 1960, the norms of the Criminal Code of the Kazakh SSR in 1959, the Criminal Code of the Republic of Kazakhstan as amended in 1997 and 2014 on transport crimes. The analyzed period is characterized by the appearance of a special Chapter of the special part of the Criminal Code, a steady increase in the number of articles on liability for transport offenses, the specification of articles of a general nature by the allocation of special rules, tougher responsibility for violations of safety rules, which caused serious consequences, the transfer of certain transport administrative offenses to the criminal law, etc. This trend is explained by the rapid growth of the country’s transport fleet, the increase in speed, intensity of traffic, the need to protect society from accidents and catastrophes and bringing the criminal law in line with the needs of practice.

Legal Personhood and Liability for Flawed Corporate Cultures

A number of recent corporate law scandals (including the Wells Fargo fraudulent accounts scandal, the Volkswagen emissions scandal, sexual harassment claims at Fox News and CBS, and various banking scandals currently under investigation in a high profile Australian Royal Commission) epitomize the danger posed by flawed corporate cultures. These scandals demonstrate that such organizational cultures can inflict damage on stakeholders, communities and society as a whole. The aim of this study is to explore, from a theoretical and comparative perspective, the issue of accountability for misconduct arising from flawed corporate cultures. This situation raises unique questions as to whom the law should target for misconduct in these circumstances. The research paper examines two specific types of liability which may be relevant in the context of misconduct arising from defective corporate cultures – (i) entity criminal liability and (ii) personal liability of directors and officers for breach of duty to their company. The study compares these forms of liability in the United States, the United Kingdom and Australia, to assess the extent to which they are well-suited to providing accountability for misconduct arising from flawed corporate cultures. As this comparative analysis shows, there are significant jurisdictional differences in these areas of law, which, in some cases, make such forms of liability ill-suited to achieve such accountability.

Legal provision of financing the health care sphere in Ukraine

The author of the article has studied the main disadvantages of legal provision of health care financing in Ukraine and the ways of their elimination.
 The legal principles of medical reform and the basic principle about the autonomy of medical institutions – “a patient-money” have been analyzed. It has been stressed that the subjects of public law in the person of state and municipal health care institutions according to the Constitution of Ukraine are obliged to provide free medical care, however, with the adoption of the Law of Ukraine “On State Financial Guarantees of Medical Care of the Population”, a partial payment for medical services has been established.
 The author has offered to provide additional guarantees for disadvantaged population by developing and financing social programs for the availability of medical care.
 The cases of the access to information about a patient without his consent have been considered. New theoretical conclusions, generalizations and suggestions have been formulated, in particular, the author has offered the definition of the concept of “direct threat to life” in the context of regulatory acts regulating financing of health care in Ukraine. It has been stressed that a direct threat to life is the emergence of conditions under which there is a risk of death of a patient without the provision of medical care.
 It has been clarified that the main disadvantages of legal provision of health care financing in Ukraine include: non-compliance of certain provisions of the mentioned Law with the provisions of the Constitution of Ukraine; the risk of arrangements between family doctors and doctors in different areas in regard of sending patients for further treatment; the lack of security guarantees of personal data of patients in the electronic health care system; the risk of reducing the number of medical institutions in Ukraine.
 It has been concluded that the reform of the health care system necessitates amendments to the Art. 49 of the Constitution of Ukraine and adoption of the Concept of Financing and Development of the Health Care System, which would involve the introduction of a mixed model of financing health care field.
 The perspective direction of further research the author believes that scientific development of propositions on improving liability for offenses in the sphere of health care financing in Ukraine.

Responsible Shares and Shared Responsibility: In Defense of Responsible Corporate Officer Liability

When a corporation commits a crime, whom may we hold criminally liable? One obvious set of defendants consists of the individuals who perpetrated the crime on the corporation’s behalf. But according to the responsible corporate officer (“RCO”) doctrine, the government may also prosecute and punish those corporate executives who, although perhaps lacking “consciousness of wrongdoing,” nonetheless have “a responsible share in the furtherance of the transaction which the statute outlaws.” In other words, under the RCO doctrine, a corporate executive can come to bear criminal responsibility for an offense of her corporation that she neither participated in nor culpably failed to prevent. As long as the executive in question had the authority to prevent the corporate crime and failed to do so, she may be targeted in a criminal suit. The RCO doctrine plainly poses a challenge to our traditional understanding of criminal culpability, according to which guilt is individual—one may be held responsible only for a wrong one has personally committed, and only if one has done so with a guilty mind. Thus, RCO liability, while representing the most common instance of strict criminal liability, has been deemed “at odds with fundamental notions of our criminal justice system,” and likened to the primitive doctrine of frankpledge, under which innocent members of a group could be punished for the wrongful deed of one of their fellows. On the other hand, corporate crimes have an irreducibly collective aspect. If we take this aspect seriously, as this paper does, then departures from the paradigm of individual culpability may well be warranted. In particular, we may be justified in assigning responsibility not just to the corporate crime’s immediate perpetrators, but also to those who held prominent positions within the corporation at the time of the crime’s occurrence, and this responsibility may license just the kind of criminal liability that the RCO doctrine contemplates. This paper seeks to determine the circumstances under which this extension of responsibility is permissible, and the grounds of its permissibility. More specifically, this Article critiques existing justifications for the doctrine by arguing that these mistakenly construe it as a kind of negligence liability, and in so doing deprive the doctrine of its transformative power. It next offers a defense of the doctrine, according to which personal guilt is not necessary, and then contends with objections to the doctrine, arguing that we need not dispense with the doctrine altogether in order to avoid the concerns of its critics. What is needed instead is a set of guidelines that guard against the doctrine’s misuse or abuse. Finally, this Article ends with a specification of these guidelines.

The Merowe Dam Project – When Does the Coin Flip from Legal Business Activity to Criminal Behavior? Reflections on the Concept of Guarantor’s Liablity in the Context of Transnational Business Activities

The individual liability of corporate officers for crimes that are often framed as transnational human rights abuses is much debated. While it seems that some standards of liability are developing in the field of international criminal law, standards of criminal liability in cases where the alleged crimes do not amount to international crimes remain to some extent unclear. This article will examine a concrete case that was investigated by the Frankfurt/Main prosecutor’s office. Additionally, it will be considered whether international soft law standards on corporate human rights due diligence have an influence on how the existing standards of guarantor’s liability, and especially that of principals (Geschaftsherrenhaftung), are to be interpreted in these cases.

You Can’t Charge Me, I’m a Cop: Should Police, Corrections Staff and Law Enforcement Officers Be Immune from Criminal Liability for Actions Carried Out against Vulnerable People in the Course of Their Duties?

This article will argue that current Australian laws which provide for immunity from criminal liability for police, corrections staff and other law enforcement officers for actions carried out in the course of their duties should be repealed. It will, firstly, survey and analyse a number of such provisions in different Australian jurisdictions. The laws cover several different occupations and contexts: from police officers arresting or holding people in custody; to prison or juvenile detention centre officers carrying out their duties; and to immigration detention centre guards. In the process, it will consider the extent to which such provisions operate more favourably to the defendant than the ordinary law of self-defence. Secondly, the article will consider what policy justifications there may be for or against the existence of such provisions. This will include a discussion of the historical origin of criminal immunity provisions in Australia, including the policy implications of the history of the use of force against Aboriginal people by police. It will conclude that a human rights-based perspective requires the repeal of such provisions, which operate primarily upon vulnerable people (prisoners, people being arrested or detainees), and are consequently liable to abuse.

Managerial overconfidence and directors' and officers' liability insurance

The study investigates how CEO overconfidence impacts a firm's decisions on directors and officers (D&O) liability insurance over the 2008–2014 period for nonfinancial firms listed on the Taiwan Stock Exchange. We find that the effect of CEO overconfidence on the D&O insurance decision is significantly different between family and nonfamily controlled firms. Family firms with overconfident CEOs have higher demand for D&O insurance, particularly when the CEOs are family members. In contrast, nonfamily firms with overconfident CEOs tend to purchase less D&O insurance. These results are robust to the consideration of endogeneity concerns, and to alternative measures of family-controlled firms, CEO overconfidence, and D&O insurance coverage. This study provides the first empirical evidence regarding the role of managerial overconfidence in corporate D&O insurance decisions.

Corporate Criminal Liability in Indonesia Anti-Corruption Law: Does It Work Properly?

Abstract Since the way of doing corruption has evolved over time, there are likely possibilities for corporate entities to be involved in corruption activities and infringe the anti-corruption law. This paper endeavors to find justifications to criminalizing corporate entiti(es) from a law and economics perspective. This paper argues that it is ultimately efficient for a party not to be held criminally liable for another party’s culpable act, and thus it concludes that individual vicarious criminal liability is inefficient. Unlike individual vicarious liability, corporate vicarious criminal liability might be efficient. This paper will also explain how and why the implementation of the corporate criminal liability should be classified differently with the liability of corporate officers, particularly under the regime anti-corruption law, so that the distinction between the personal acts of a high ranking corporate officers and the act of corruption involving the corporation itself can be unequivocally distinguished. This paper also critically evaluates Indonesia’s regulation and formulation of corporate entity criminal liability which pursuant to the anti-corruption law and to further examine whether Indonesia’s anti-corruption law has achieved its purpose.

Smart use of smart weapons: jail officer liability for the inappropriate use of tasers and stun guns on pretrial detainees

The US Supreme Court in Kingsley v. Hendrickson (2015) ruled that the use of a taser on a pretrial detainee for not following verbal commands, when the subject was not posing a threat to the security and order of the jail, was objectively unreasonable, unrelated to legitimate penological needs, and that the subjective intent of the officer was not to be taken into consideration. This is a major development in prison law as the US Supreme Court specifically addresses the issue of excessive use of force on pretrial detainees, who are distinct from prison inmates. Here, the objective reasonableness standard used in Graham v. Connor (1989) for excessive use of force by the police was applied to pretrial detainees instead of the Eighth Amendment’s cruel and unusual punishment clause, thus clearly distinguishing pretrial detainees from those already convicted of crimes. Besides this decision, this paper looks at 10 Federal Circuit Court and US District Court cases involving the use of tasers and stun guns by jail officials on pretrial detainees and concludes that more emphasis on the use-of-force continuum or model, during jail officer training would go a long way in guiding in the appropriate use of tasers and stun guns, an intermediate and not an insignificant level of force, in keeping with the US Supreme Court ruling in Kingsley v. Hendrickson (2015).

D&O Insurance and Corporate Governance: Is D&O Insurance Indicative of the Quality of Corporate Governance in a Company?

(Practically) all listed companies have Directors & Officers Liability insurance. Literature suggests that D&O insurance and, more in particular, the premium, can be indicative of the quality of corporate governance of a listed company. The idea is that a D&O insurer has an interest in properly identifying the corporate governance of a company and in reflecting this in the premium, since the quality thereof (partially) affects the risk of liability claims against directors and officers. However, a field study shows that D&O insurers in the Netherlands do not scrutinize the corporate governance of a company and that the findings are not or hardly reflected in the premium. The reason for this is that today, most listed companies comply with the corporate governance rules and - more importantly - the corporate governance on paper says relatively little about what the corporate governance of a company is like in actual practice. For this reason, D&O insurers, in their risk assessment, mainly focus on the company’s character and culture. These D&O insurers expect that this for an important part determines how aspects of corporate governance are dealt with in practice. The character and culture of the company will also affect the directors and their actions. As such, the premium does contain a value judgement on the company’s risk profile, thereby giving an indirect signal on the quality of corporate governance. Set against the sum insured and the deductible/retention, which can also give (direct) signals on corporate governance, the premium can provide valuable information to investors and other parties involved. In that case, however, it must be possible to observe and compare the information against data of similar companies and against data on previous policy years. It is, therefore, recommended, partly with a view to the willingness to invest and the growth of capital markets, that listed companies (must) publish basic information on D&O insurance.

The Trial of Joseph Dotterweich: The Origins of the “Responsible Corporate Officer” Doctrine

This article analyzes the origins of the “responsible corporate officer” doctrine: the trial of Joseph Dotterweich. That doctrine holds that an officer may be personally liable for the criminal act of a subordinate if the officer was, in some indefinite way, able to prevent the violation. Applying this doctrine, the prosecution of Dotterweich entailed strict liability for a strict liability offense. The underlying offenses—the interstate sale of one misbranded and adulterated drug and one misbranded drug—were said to be strict liability offenses. And then, with respect to Dotterweich as the corporation’s general manager, the government argued that he was strictly liable because he stood in “responsible relation” to the company’s acts. The government never tried to prove that the company, Buffalo Pharmacal, was negligent, nor did it try to prove that Dotterweich was negligent in his supervision of the employees of Buffalo Pharmacal. The prosecutor and judge were candid about this theory throughout the trial, although the judge conceded that it seemed bizarre and unfair. The defense lawyer repeatedly sought to inject what became known throughout the trial as the “question of good faith,” but was circumvented at almost every turn. What would thus seem to be the crux of any criminal trial—the personal fault of the defendant—was carefully shorn from the jury’s consideration. The government’s theory was so at odds with intuitive notions of liability and blame that, as one probes into the case, and looks at the language used in the government’s appellate briefs, imputations of moral fault inevitably crept in. Yet the government was not entitled to make such accusations, as it had pruned moral considerations from the trial. The article argues that the responsible corporate officer doctrine can never enjoy a secure place in our legal system. First, the doctrine is at a minimum in tension with, and often in direct opposition to, basic principles of the criminal law; and second, the doctrine fails, when followed to its logical conclusions, to accord with basic notions of fair play. The article concludes that the responsible corporate officer doctrine is either unnecessary, in cases in which the evidence establishes personal fault, or unjust, in cases in which it creates liability in the absence of personal fault through the unspecified notion of “responsibility.” The Dotterweich case illustrates what is contemplated by the latter possibility, and why it is problematic in any judicial system that purports, in the words of the Model Penal Code, “to safeguard conduct that is without fault from condemnation as criminal.”