Corporate Criminal Liability Versus Vicarious Liability

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Table of Contents

Introduction
Nature of white-collar crime
Fraud Act 2006
Conclusion
Works cited

Introduction

Criminal liability is the lawful responsibility that arises out of wrongs against society or a government. It involves subsidiary areas and important questions regarding criminal law and criminal procedure (Ross 28). Vicarious liability is a situation where an individual is being held accountable for the criminal acts committed by somebody else, just because of some special relationship existing between the two parties. Generally is a lawful responsibility for the actions of another person.

Negligence refers to the accountability to ensure the safety of those individuals who may be affected by other people’s actions. It refers to the carelessness in a matter in which law mandates carefulness or charge against something in a product insurance company such as achieving compensation for risks.

The failure to meet the standard causes, or substantially contributes to, the harm.

However, these limitations were eliminated for many years. Relying on the imaginary tales that any act of a worker are the acts of the employer of that worker (Bouza 19). Some individuals and corporations support this kind of liability as direct rather than vicarious. (American Civil Liberties Union 34).

In the case of limited liability companies, the disqualification of directors may not provide sufficient remedies, especially where several creditors have suffered losses and even the shareholders losing their investment. Without tangible solutions and remedies, business crime victims would not be reinstated to their original status, this makes the criminal law approach to solving business crimes wanting.

Business crimes should be looked at as special crimes which require convicts on the same domain to be given measures that are not only punitive but also given the responsibility to compensate the victims of his/her actions. Loss of millions by organizations through fraud may impact negatively on the performance of the organization and even the economy as a whole. This requires that the legal remedies provided by the courts should be able to compensate them for the losses and at the same time punish the perpetrators.

Nature of white-collar crime

White-collar crimes are mainly carried out by insider professionals and consequently fall under the occupational category of crimes. The perpetrators of these crimes are people in the course of their duties and therefore abusing their positions of trust. These crimes are usually invisible since they do occur in the workplaces and they may not even be discovered since the perpetrators may conceal any trace.

White-collar crimes and especially fraud involve the use of technical knowledge and therefore require insider participation to facilitate it. This kind of crime is an abuse of professional knowledge and technical expertise in a particular area of trade, making it a complex crime since experts are involved. Expert knowledge involvement also makes the crime highly organized therefore determining who is responsible for the fraud might be a daunting task. Some of the white-collar crimes are victimless or the victims are not aware that their rights have been infringed on. Crimes like the sale of less-weight goods and corruption do not have direct complainants.

Major business crimes have an ambiguous legal and criminal status. This is because most of the crimes have an apparent lack of intent by the perpetrators, especially where diffusion of responsibility is very tight. Some of the players in this form of crime were honestly discharging their responsibilities and this makes them lack the intent to commit crime which is an important moral consideration.

Fraud Act 2006

This Act came into effect in January 2007 but received assent in November 2006. It is one piece of legislation designed to limit fraud as one of the major white-collar crimes in the UK. The act has handled the external fraud mostly inherent in public limited companies. The Act categorizes fraud into three;

False representation
Failure to disclose corporate information
Abuse of position

Other crimes under the Act include the following;

Possession of an article for use in a fraud
Making or supplying articles for use in a fraud
Participating in a fraudulent business carried on by a sole trader
Obtaining services dishonestly

This definition of fraud has fit into the nature of most white-collar crimes and it has enabled a clear isolation between theft and fraud with the latter being hazardous to the overall economy. The Act further elaborates the various categories of fraud to ensure that there is a clear definition of each giving limited loopholes to the defendants under this act.

Conflict of interest is one of the most dangerous issues facing and affecting many corporations worldwide. Conflict of interests’ is defined as an occurrence where an organization or an individual is involved in numerous interests which contribute towards the corruption of other acts required of a director or a manager by the shareholders. Conflict of interests has serious negative impacts on corporations because it leads to numerous losses on the part of the shareholders especially when the managers or the directors use the shareholders’ funds for their own self-interests.

It also leads to bankruptcy and unending lawsuits with creditors because the conflict of interests reduces a corporation into a debt-ridden institution especially when the corporation funds are embezzled by the directors and managers. Using the Sarbanes-Oxley Act of 2002, one of the conflicts of interests that could arise in a business includes destruction, alteration and manipulation or interference of financial records by the directors of a corporation to suit their own needs.

This section is contained in the Title VIII of the Sarbanes-Oxley Act of 2002 under the Criminal and Corporate Fraud Accountability. Thus, a lack of accountability on the part of a public company’s directors is a strong indication of a conflict of interests. Such a conflict could be resolved by carrying out thorough investigations on the conduct of the directors as well as providing adequate protection to any person who may be regarded as a whistleblower or who may have contributed to the discovery of such a conflict of interest

Conclusion

Vicarious liability forces organizations to internalize the cost of wrong conduct when agents cannot be judged. It also forces corporations to control the misconduct of their employees through supervision and preventive measures. In the private sector, at least, forcing corporations to internalize the expenses of unwanted conducts that go together with their productive activity leads, other things being equal, to a competent level of production by bringing the private production cost into line with the social costs (Kraakman 36).

The above theory does not mainly focus on right and wrong or justice, it center’s on the psychological reasoning which led to the decision made by the man in the above case. This brings us to the stages of reasoning in Kohlberg’s theory of moral development. The first level is called Pre conventional morality. Stage one of this level entails obedience and punishments; this is the first stage as it is seen on young children when they are developing morally. However, adults are also likely to express this stage of reasoning and thinking (Lyman 34).

Therefore, even if company principals are not able to control caretaking by agents, vicarious liability can guarantee that they at least face the full anticipated expenditures of misconduct or accidents, and therefore do not carry out too much provision of risky activity, certainly, that their agents are also sternly legally responsible for the causal harms at issue (Kraakman8).

Works cited

American Civil Liberties Union. On The Line: Police Brutality and its Remedies. New York. Wiley, 1991.

Bouza, Anthony. The Police Mystique: An Insider’s Look at Cops, Crime and the Criminal Justice System. New York. Plenum Press, 1990.

Kraakman, Hugh. vicarious and corporate civil liability. London: Oxford Publishers, 2002.

Lyman, Mark. (2008). The Police: An Introduction. 4th edition, Upper Saddle River, NJ: Prentice Hall.

Ross, Darrell. Civil Liability in Criminal Justice Third Edition. Anderson Publishing Co., 2003.

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