Can CriminalLiability of Corporation be determined throu,h Imprisonment It is always a debatable issue and almost agreeable that +orporation cannot be sentenced for imprisonment. Imprisonment transportation banishment solitude compelled labour are not e?ually disagreeable to all person under the penal code. It totally depends upon the circumstances of the person for the imposition of punishment. Eut in case of corporation Imprisonment cannot be recognised even for serious offences mentioned under the I+. ;ince there is no explicit provision relating to it Hence the apex court in various cases have held that it is better to impose fine upon the corporation even in the cases where there is a punishment for imprisonment. The imposition of fines may be made in four different ways as provided in the I+. It is the sole punishment for certain offences and the limit of maximum fine has been laid down/ in certain cases it is an alternative punishment but the amount is limited/ in certain offences it is imperative to impose fine in addition to some other punishment and in some it is obligatory to impose fine but no pecuniary limit is laid down $# . However ;ection #43 +r+
morally culpable at the time a rogue employee committed a crim- inal act may later attempt to obstruct justice to prevent detection of the conduct. While this might properly result in a corporate conviction for obstruction of justice, the organization should not also be held accountable for the previous acts of the employee. Similarly, a corporation that was morally culpable for the acts of its employee because it encouraged the illegality does not become morally pure merely because it offers remedial amends once the behavior is discovered. As such, focusing only on pre-offense and offense-specific considerations creates a more reliable mechanism for the culpability analysis.
The setting of the responsibility criminal against corporations in Indonesia starting from the inception of the emergency law number 7 of 1955 on Economic Crime, then followed by some of the last act is Act No. 8 of 2010 on prevention and eradication of the crime of money laundering. In the framework of the renewal of national criminal law and the draft law on The Criminal law (Criminal Code) systematically have set the criminalliability of corporations, whether incorporated corporation law and Corporation who is not a legal entity. Although there have been laws governing corporate crime responsibility about but are still have problems in its application. It can be seen from the lack of a corporate criminal sentenced by the Court.
Corporate CriminalLiability concerns the issue of liability, intentionality or negligence of the Corporation. The cases of consumers’ money embezzlement occuring in Automotive Companies in Indonesia are frequently not submitted to court. Although there were some cases that had been submitted in court and had obtained permanent legal force, the trapped party was only the members or company’. Meanwhile, the company has never been charged. This is because the Indonesia Criminal Code does not recognize legal subjects in corporation. In contrast, Criminal Code only recognizes human as subject to criminal law (Article 59 of the Criminal Code). In addition, the absence of strict regulation regulation provided on Liability of Business Actors (Company/ Corporation) against consumers’ losses as stipulated in Act No. 8 of 1999 concerning Consumer Protection (UUPK), specifically the losses from the legal action of employees of the company and senior company officers, is also a leading factor for the development of criminal acts in corporations. The element of examining corporate as the subject to criminal acts miscunduct is difficult to implement due to its non-human nature. However, if the corporation is not demanded to provide liability just because of the difficulty of proving perpetration, impunity to corporation will occur.
Research on criminal accountability of environmental pollution which is committed by a corporation shows on multinational corporations have shown a massive accumulation of wealth, and creating a wide gap between personal. There is a very rich and still very much the poor. Even large corporations that dominate the world economic system, and can specify the job for many people, the food, drink and clothing, and so forth. Corporations can also threaten the government of a country in which the corporation operates. Whereas in the field of criminal law, which relates to the weight of this responsibility referred to in the draft Criminal Law (Penal Code) only recognize the individual as a subject of criminal law. For the corporation has not been regarded as a subject of criminal law. However, in the subsequent development mentioned in the special criminal law. Relationship with vicarious liability or responsibility of corporations in criminal law can be described as the imposition of criminal responsibility to a person in the capacity of the main actors, based on the act violation or at least there is an element of violations committed by others. Those who do, however, must take responsibility for his actions limited. It required firmness to lay criminal responsibility on offense corporate environment so that corporations that make careless exploit aolam that cause pollution can be imprisoned according degan mistakes. Similarly, it takes socialized to maskarayat about the possibility of environmental offenses that should be accounted for by the corporation. It is thus essential to solicit public participation in maintaining environmental wisdom.
The advancement of information technology affects the crime related to consumer protection. This impact is no longer confined to certain regions or country, but it is tranversing jurisdictional boundaries (transnational). Thus, the variety modes of the crime increase, not only used by individual, but also carried out by corporations. Criminalizing corporation is difficult, especially when related to consumer protection. That is because there are no legal provisions about corporate’s position and its responsibility in Criminal Law in Indonesia. Consequently, this condition leads to multi interpretations and thoughts between law enforcement officers. Therefore, it is necessary to have guidelines in handling crime cases done by companies. This study employs normative juridical research method. This research concludes that after the issuance of Indonesia’s Supreme Court Regulation Number 13 of 2016 About Procedures for Handling Criminal cases done by corporations, the law enforcement officers are no longer confused on how to handle the crime.
Economic crime is endemic in the global arena and recent economic crime statistics show that the problem is accelerating rather than reducing. The conviction rate of corporate entities involved in the commission of economic crime is also not increasing. 1 It has been indicated that South Africa has lost an estimated amount of R930 million a year on economic crime. Just recently a corporation was forced to close down after its financial clerk stole over R1 million from the company and thereby impacting negatively on its productivity and financial turnover. 2 Gillian Wolman, head of litigation at Risk Benefit Solutions (an independent insurance risk specialist) warns that as the economic conditions tighten in South Africa there is a risk of an increase in economic crime. Economic crimes are typically crimes which do not occur instantly or on the spur of the moment but are often a gradual process committed over a period of time and involving careful planning. As such it may have a devastating effect on the economy of a country. Hence it is of great importance to address the challenge not only of individuals who are involved in these types of offences but also corporate bodies 3 who are involved in the
Critics of the identification doctrine mainly contend that the notion of a “directing mind” is too limited and thereby conduces to an excess of exonerations for corporate wrongdoing. This was the view adopted by the government in 1999, as described by Professor Boisvert in a discussion paper presented at the Uniform Law Conference of Canada held during the same year. According to this view, restricting corporate responsibility to the actions of individuals with “governing executive authority, i.e. those with decision-making power and discretion to design a policy, rather than the individuals who implement it, 714 fails to consider that “in multifaceted companies, lower-level management may be the ones interpreting, applying and even creating corporate policy” 715 . In addition, “linking the corporation's liability to the wrongful acts of its senior officials clearly constitutes an encouragement to isolate the latter to ensure they are unaware of any doubtful practices by the corporation”. 716
must be trained so that they know what their tasks and duties within the corporation are. Whenever some employee acts beyond his powers, suitable checks and sanctions for such transgressions must be provided for. In this way, preventive regulation will be formed among employees. Some positive experience from other countries shows that it is ideal if the company management gets involved in the system: it must know as much as possible about how the company is running. The management should not merely see to the company’s ﬁ nancial means and good name; it must also monitor the operation of the internal measures, make sure that the measures are suﬃ cient and seek their changes, where necessary. As the above-mentioned survey into economic computer crime indicates, internal and external risks must be assessed and adequate preventive measures must be created – that is the only way in which the potential risks of criminalliability may be reduced. 16
is enough evidence to proceed with a case against an individual. The prosecutor must be in a position to make up his own mind. The political processes and decisions of the Security Council should not serve as absolute jurisdictional facts on which the prosecutor must rely. Establishing an independent role for the prosecutor is not in conﬂict with art 5(2) of the Rome Statute. This article provides that any future provision on the crime of aggression ‘shall be consistent with the relevant provisions of the Charter of the United Nations’. The fact that the International Criminal Court may defer cases on request of the Security Council (in the context of Security Council action on matters concerning international peace and security) is evidence of the Court’s role as promoter of not only international justice but also of international peace and security, in line with the aims of the United Nations Charter.
Possession offences may involve a common design, or joint enterprise, whereby possession of the prohibited items may be shared among several people. 61 If a defendant acquired the prohibited objects or substance or substance in pursuance of a common design then he does this on behalf of all co-defendants to the joint enterprise who are deemed to have joint possession and each may be convicted accordingly. 62 In The People (DPP) v O’Neill, 63 five defendants and one co-defendant were tried in the Special Criminal Court for offences of possession of explosive substances in such circumstances as to give rise to a reasonable suspicion that they did not have them in their possession for a lawful purpose and having the substance in their possession with intent to endanger life or to cause serious injury to property. The five defendants were convicted. On appeal, the Court of Criminal Appeal held that the court had to determine the appropriate inference to be drawn from the facts and that on the evidence it was reasonable to find that the defendants were engaged upon a common purpose and there was ample evidence that the defendants conduct were criminal offences. Furthermore, without a finding of common enterprise it is difficult to infer common knowledge but in the absence of any explanation by the defendants it was impossible to conclude that the activities of the defendants were other than central to the business of preparing explosives and that they must be held to have had possession of them. The defendants appeal was dismissed.
to maximize their profit at the top of the stock exchange, and at the same time maintain their output largely unregulated. 83 Therefore, to shape their
practice in the common good, there is an urgent need for sector-specific regulation. Without a regulation that goes beyond ethical standards, principles like justice and accountability will remain conflict concepts between mega-companies and the common good of the general public. Ethical codes, without enforceable mechanisms, have little or no effect regarding AI’s social implications and liability problems. It seems that some of these companies have realized the complexity of the problem and have come to the same conclusion. A representative of Microsoft, for instance, calls for establishment of a new field of law governing “a growing pool of businesses involved”. 84
`There shall be established after consultation with the Control Council for Germany an International Military Tribunal for the trial of war criminals whose offenses have no particular geographical location whether they be accused individually or in their capacity as members of the organizations or groups or in both capacities.’ (Article 1 “London Agreement” Charter of the International Military Tribunal); `The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes’ (Article 6 Charter of the International Military Tribunal); `For the purpose of paragraph 1, an attack directed against any civilian population means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack’ (Article 7 (2) ICC Statute (Crimes against humanity)); See also Cassese, `Crimes against Humanity’ in The Rome Statute of the International Criminal Court: A Commentary (2 vols), A. Cassese, P. Gaeta, J.R.W.D. Jones (eds), Oxford, 2002, p. 356-357; see also ILC Commentary 18, Draft Code 1996.
his/her willpower without, however depriving him/her of consciousness of his/her acts.
4. AGGRAVATING CISCUMSTANCES - are those attending the commission of a
crime and which increases the criminalliability of the offender or make his guilt more severe. Some of the circumstances considered by law as aggravating the guilt of the offender are the following: