critical assess whether the law should impose criminal liability upon a company and, if so, what test or tests should be used to impose such liability
Introduction As a global topic in crime circles, company crime is always a public concern in the theory and practice field of various countries. With the rapid development of economic and growing trend of economic globalization, plenty of different kinds of company crimes are committed one after another, which badly harms the economic development and security of various countries. In recent years, with constant revision of company legislation in different countries, and continuous development of governance structure, company forms and operation model in theory and practice, a new and urgent topic about traditional criminal legislation and punishment on company crime has been put forward, which needs our deep and systematic research.
1. Definition of company crimecompany crime refers to a kind of crime in which the legal entity is the subject of crime. Common law in early times had no statements on company crime, because crime was defined exclusively as behaviors of a natural person in traditional criminal law. And a legal person was referred to as a legal entity without body movements or thoughts, which are requirements of committing a crime. However, with the fast development of economy, business enterprise activities are exerting increasing influence on people’s life. To safeguard the well-being of the public, the court began to apply the civil rule “The master claims to the fault of his servant” in common law to criminal field in the end of 19 century, thus company crime emerged. The legislation and judgments of company crime means a lot to strengthen the administrative management of enterprises and enhance their social responsibility.
company crime overlaps with economic crime and white-collar crime in terms of research object, method and range, etc. In order to define it clearly, and catch its exact connotations and range, we should firstly make comparisons and analyses, and set our own starting point and theory basis of building company crime research system.
Ordinary people often mix up company crime with economic crime, which are not exactly the same actually. Theoretically speaking, economic crime is defined by K•lindermann, a German scholar, as “a kind of punishable behavior committed against national economy and its important sectors”; Fugiki Hideo, a Japanese scholar, said economic crime was “a kind of unlawful behavior committed for personal gains by people in economic and business circles when performing their duties”. Taiwan scholar http://www.ukassignment.org/ Shantian Lin said, economic crime is “a kind of property or interest crime that is serious enough to harm normal economic activity, disturb economic life order, or even break the whole of economic structure, and it is committed to get unlawful benefits by taking advantage of allowed economic activities for economic trade, abusing the honest credit rule that economic order is based upon and breaking all direct and indirect economic decrees that regulate economic activities”.#p#分页标题#e#
The Oxford Companion to Law defines white-collar crime as a kind of occupational crime that is committed by decent managers and professionals. It includes frauds, scams and cheating in finance transactionshttp://www.ukassignment.org/daixieAssignment/daixieyingguoassignment/ and the like. It is estimated that white-collar crime involves much more money than common crimes such as theft and robbery. According to Sutherland (1949), white-collar crime is committed by respectable people of high social status when performing duties. That is to say, white-collar crimes have two necessities: first, the offender was a respectable man of high social status; second, the crime must be done by taking advantage of lawful occupational activities. It is generally believed that illegal and harmful behaviors to increase company or personal gains performed by managers and staff are a kind of white-collar crime. Such crime includes company violence, company theft, company illegal control over finance and company illegal interference on politics, etc, thus overlapping with company crime.
It is generally believed that company crime is committed by the executive on behalf of the company. This kind of crime harms not only financial system of the nation, but also people’s well-being and life security on serious occasions. company crime and white-collar crime are distinctive in terms of definition. However, it is extremely difficult if you want to tell one from another absolutely, especially when involving with financial crimes. For example, in the case of 1998-1999 financial crisis in Taiwan, people involved were the boss or manager, and they committed the crime for personal gains or the company’s interest. So it may be included in either the former type of crime or the latter one, or even the both, because both the company and individuals can gain from the case. The two types of crimes are just like conjoined twin babies, too closely connected to be separated. Therefore, company crime may be better defined simply as illegal behaviors committed by managers or staff on behalf of company or personal interest.
2. Theories review of company crimeSocietas delinquere non-potest serves as a rule in ancient Rome until the first half of 19th century. France Criminal Law in 1810, a typical example of modern criminal law also mentioned about company crime. French case law of that age also made clear a regulation that companies do not take criminal responsibility, and prosecution on a legal person is dealt with individually. As company crime increases day by day, the conception that a legal person makes no crime is finally challenged by the age.
Anglo-American Law System mainly studies from the perspective of white-collar crime, while continent law system, especially Japanese law system mainly studies from the relations between enterprise organization theory and company crime. And some others study company crime from the perspective of criminology.
In America, economic crime is called white-collar crime, a more common name. Generally speaking, it went through three stages, white-collar crime (including company crime), occupational crime and economic crime. And company crime is studied as the center of white-collar crime at first. British common law experienced a process of first denial, then approval, and finally total affirmation, most of which was followed by America. In dealing with the problem of company bearing criminal responsibility, America went through stages, first company bearing no criminal responsibility, then company bearing criminal responsibility, and finally company bearing criminal responsibility of intentional crimes. The principle that “The master claims to the fault of his servant” is the theoretical basis of American company crime. According to this principle, a company shall be prosecuted for criminal responsibility if it meets the following demands: first, the legal person’s behavior committed a crime. Second, the crime was committed within the duty of the agent. Finally, the agent committed the crime for the gains of the company.#p#分页标题#e#
After WWⅡ, Japanese economy experienced the period of disorder(from 1945 to 1952), reconstruction (from 1952 to the end of 1960s), and rapid growth(from the end of 1960s to the end of 1970s). Economic crime showed different characteristics in different periods. In view of the new occurrences of economic crime in different periods, Japanese academic circles brought up new theories and strategies accordingly. In the age of Japanese wartime economic acts, to violate economic acts was to commit “economic crime”. As free economic system established after war, the concept of “economic crime” and “economic criminal law” is gradually replaced by “white-collar crime” and “company crime”, etc.
German economic crime and economic criminal law are classified according to different criteria, and company crime takes an important position in the whole system according to whatever criteria. Regulations on company crime are mainly embodied in international economic criminal law, including Act against Restraints on Competition, regulations on allowing enterprises to enter and leave circulation and production fields(including registration criminal law and bankruptcy criminal law), Stature of company Frauds(including regulations against deceitful advertising, regulations on ensuring the liability of information and regulations on protecting the credit system), environment criminal law, criminal law of health and safety at work, Consumer Protection Criminal Statutes, enterprise credit information criminal law, and regulations on punishment of credit card crime and computer crime, etc.
3. Legislation on company crime of various countriesThe legislative affirmation of company crime generally went through such a process: accessory criminal law, criminal law of single file, and finally taken into criminal code. In 1919, Germany regulated in accessory criminal law for the first time that companies and other organizations breaking tax law and committing a crime shall receive criminal penalties, guilty or not individuals are. Japan did not approve company crime either in criminal code, but still had regulations on company crime in accessory criminal law in view of punishing company criminals in actual life. In 1930s, France proclaimed some accessory criminal law one after another, affirming the responsibilities of companies in limited scope. In the revised version of French Penal Code in 1994, legal person was officially taken into criminal law as the subject of criminal responsibility, making France the first in countries of continent law system to bring company crime into criminal law. In recent years, under the influence of EU and OECD, more and more countries regulated the criminal responsibilities of company crime in their criminal code, such as Netherlands, Norway, Finland, Belgium, Slovak Republic and Turkey, greatly shaking the traditional criminal principle of a legal person making no crime.
In countries of Anglo-American legal system, Britain passed The Interpretation Act in 1889, extending the connotations of “person” in criminal law and taking “legal person” into it. This made British criminal law take the lead in legislations of punishing legal persons, and also promoted the development of legal person criminal responsibility. In 1887, America started to regulate on company crime and its criminal responsibilities. During this time, three acts, The Pure Food and Drug Act in 1887, The Sherman Act in 1890 and The Interstate Commerce Act in 1906, opened the way for prosecuting legal person criminal responsibilities. At the same time, American court also stated the constitutionality of legal person legislation. Model Penal Code, made by American law institute in 1962, summarized the legislation and practice about company crime in half a century, and regulated on the scope and types of company crime. This Model Penal Code had great influence on the legislative process of American company crime. In nowadays, the wide range of company crime punishment in America is second to none in the world.#p#分页标题#e#
Now, it is generally believed that varieties of countries tend to regulate company behaviors by means of criminal punishment and the like. The range of company crime punishment is constantly widened, and the means of punishment is diversified. At the same time, as company crime punishment is not what criminal penalty theory aims at, but the utility demands of criminal strategies, various countries are all in a paradox in view of regulations on company behaviors.
4. Criminal liability of company in UK4.1 Principle of punishment4.2 Criminal liability4.3 How to perfect?Conclusion