The Theory Of Corporate Criminal Liability Essay

White Collar crime is not a crime unto it self, but instead a criteria that has to be met in order for a crime to be considered as White- Collar Crime; (Blount, 2002) hence the reason why Corporate Crime is also considered as White- Collar Crime. At the same time, White Collar Crime and Corporate Crime can be seen as distinct criminological categories, however, in order to reveal this, this essay will firstly be exploring Sutherland's definition of white collar crime and the perplexity with this definition of white-collar crime. It will then be looking at the modification which had to take place with Sutherland's definition of white-collar crime in order to established a distinction between white-collar and corporate crime.

A corporate business enterprise is established under a specific legal framework where laws governing the operations and functioning of the enterprise are outlined. The activities of the enterprise are monitored and therefore such an enterprise is recognized by law. This is important due to the fact that legal suits can be filed by the enterprise within the provisions of the law.

This essay will explain the concepts of separate personality and limited liability and their significance in company law. The principle of separate personality is defined in the Companies Act 2006(CA) ; “subscribers to the memorandum, together with such other persons as may from time to time become members of the company are a body corporate by the name contained in memorandum.” This essentially means that a company is a separate legal personality to its members and therefore can itself be sued and enter into contracts. This theory was birthed into company law through the case of Salomon v Salomon and Co LTD 1872. This case involved a company entering liquidation and the unsecured creditors not being able to claim assets to compensate them. The issue in this case was whether Mr Salomon owed the money or the company did. In the end, the House of Lords held that the company was not an agent of Mr Salomon and so the debts were that of the company thus creating the “corporate Veil” .

The question before our society is not whether corporate crime is a victimless crime, rather the question is what should be done about it? Corporate crime doesn’t just do harm to the investors that can be unknowingly damaged by these crimes, it has a much more insidious nature to it as it has done harm on global scales. Corporate crime is almost a misnomer because many of these criminal wrongdoings are for the most part legal, when not taken to their ultimate conclusion. Society within the United States has been taught that the man in the brief case, yelling at other men in dark coats on the flow of the stock exchange are the smartest guys in the room. This paper will attack that idea on many levels, the first salvo will be

(2) Tamanaha, Brian. 2008. “Law”, Oxford International Encyclopedia of Legal History, St. John's Legal Studies Research Paper No. 08-0095. Link in Course Readings and Available online: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1082436&rec=1&srcabs=1012051

This thinking began the conception of the corporation as a person, albeit for the purposes of protection of the property and contract interests of the entity’s shareholders.

This paper describes the impact of the decision made in the case of Tesco Stores Ltd v Brent LBC on the law and its effects on the corporate world, and the comparison between the doctrine of vicarious liability that it outlines and the doctrine of identification that was used earlier to determine the liability of corporations in cooperate crime.

There are three theories of liability direct, vicarious, and enterprise. Direct liability has four types that are direct one of which is the principle in the 1st degree aka "the Perpetrator" which is someone who committed the crime willing on his own accord. The second is the principle in the 2nd degree aka "the Accomplice" which is someone who assisted the assailant with the delegation of the crime while also wanting to commit the crime at the same time he/she is also present during the scene of the crime. An accessory before the Fact is not present in the area of where the crime was committed, but helped by either counseling, encouraging, or urging the delegation of a crime. The Pinkerton Rule states that all accessories are liable for predictable actions that lead to being criminalized hence the violation of the criminal agreement. Even if the accomplice is not present at the scene of a committed felony crime they are still guilty. The two aspects are the specific resolve towards committing the crime the aiding of crime or encouragement towards the committing of a crime. A death penalty is only ever enforced on those who have committed the murder. The next type is the accessory after the fact which is someone who knows he/she has committed a crime and still aid with disturbing the case like hiding the assailant away from the police for example. They will also be charged with the felony since they know they committed the crime. Relations like with family is a type of

Tomasic, R. Jackson, J. & Woellner, R. (2002). Corporations Law: Principles, Policy and Process. 4th ed. Sydney: Butterworths

Between April 20th 2010 and July 15th 2010, BP's drilling rig explosion in the Gulf of Mexico was the biggest oil spill in the history of the petroleum industry. Eleven people died. # of days later and $ in fines, BP stopped the spilling of oil into the ocean. According to the U.S. Fish and Wildlife Service (USFWS) reported on September 17th, “in terms of land animals, at least 3000 have died, tens of thousands of others have been affected [including] millions of sea organisms [although] there is no accurate count”. Conversely, it is unlikely that other than those that have been directly affected can recall the amphetamine weight loss drug scandals between the 1960’s to 1990. For that matter, likely few are motivated enough to look up the

Although doctrine of separate legal entity has the greatest importance in company law, it contains weaknesses that could be arguable. Professor Kahn-Freund described the doctrine as “calamitous” because it arise many issues, such as “How is it possible to check the one-man company and other abuse of company law?” Separate legal entity is inadequate for complex problems .

The concept of a company being a separate legal entity is the most striking illustration in separating the company from its owners. A paramount principle of corporate law is that no shareholder or member of a company is made liable for the obligations incurred by such incorporations A company is different from its members in the eyes of law. In continuations to this the opposite also holds true in the sense that neither can the company be held liable for the acts of its members. It is a fundamental distinction that a company is distinct from its members.

Corporations are a different type of business. They are more complex to start because more paperwork is involved and the corporation generally has to be registered at the state level. An ordinary corporation is formed through the articles of incorporation. These corporations are legal entities, and therefore bear legal responsibility. The shareholders of the corporation do not bear legal liability. In addition, corporate income is taxed differently it does not flow through to the owner's personal income tax statements. The

The decision of Salomon v. Salomon which brought about the doctrine of separate legal personality is one which has evolved over time. Over a century and still counting, the principle illustrated in Salomon, courts have are still reluctant in placing limitations on corporate personality and rejecting other approaches which pose as a greater challenge to the doctrine . From time immemorial, judicial history, lawyers and judges have reiterated that the doctrine of corporation is an intangible legal entity, without the body and soul. In Athanasian terms, the orthodox doctrine of corporation as a legal person, separate and distinct from the personality of the members who compose it, has been defined and propagated .

Corporation origin from the Latin word Corpus which means body. It is formed by a group of people and has separate rights and liability from those individual. In any means, corporation exists independently from its owner and this principle is called the doctrine of separate personality. Doctrine of separate personality is the basic and fundamental principle in a Company Law. This principle outline the legal relationship between company and its members. Company’s assets belong to the company not the shareholders as assets are the equity for creditors. Company must use up all its assets to pay off the creditors if it became insolvent. The same applies to the corporation’s debts. For limited liabilities company, the shareholder liability is limited which means that the shareholder is restricted to the number of shares they paid and not personally liable for the corporation’s debts. If the company does not have enough equity to pay off debts, the creditors cannot come after the shareholders. However, limited liability company can be very powerful when in hands who do fraud and on defeating creditors’ claims. Courts then can ignore the doctrine for exception cases and lifting the corporate veil. Lifting the corporate veil is a situation where courts put aside limited liability and hold a corporation’s shareholders or directors personally liable for the corporation’s debts.