Accountability of Canadian Mining Corporations for Their Overseas Conduct: Can Extraterritorial Corporate Criminal Prosecution Come to the Rescue?

2017 ◽  
Vol 54 ◽  
pp. 227-275 ◽  
Author(s):  
CHILENYE NWAPI
Keyword(s):  
Developing Countries ◽  
Criminal Liability ◽  
Legal Framework ◽  
Criminal Code ◽  
Criminal Prosecution ◽  
Environmental Rights ◽  
Canadian Government ◽  
Justice Process ◽  
Corporate Criminal Liability ◽  
Accountability Gap

AbstractThis article is set against the backdrop of the inability of Canadian courts to hear civil cases brought by victims of the operations of Canadian mining corporations in developing countries where accountability mechanisms are weak. The article examines the legal framework for extraterritorial criminal prosecution in Canada with a view to seeing how corporate criminal prosecution could fill the accountability gap and contribute to the promotion of the accountability of Canadian mining corporations involved in human and environmental rights abuses in developing countries. The article argues that extraterritorial criminal prosecution holds prospects for success in Canada, if only the Canadian government is willing to utilize it. The real and substantial link test, the Crimes against Humanity and War Crimes Act, and several sections of the Criminal Code provide sufficient jurisdictional bases for such prosecution. The amendments to the doctrine of corporate criminal liability that were made in Canada in 2003 bolster the criminal jurisdictional strength of Canadian courts. Lastly, there are no compelling international comity concerns to discourage the Canadian government from utilizing the criminal justice process to contribute to the global fight against corporate impunity in human and environmental rights abuses. This article seeks to contribute to the knowledge of the powers at the disposal of the Canadian government to do so.

scholarly journals CORPORATE CRIMINAL LIABILITY IN INDONESIA ON THE PERSPECTIVE OF COMPARISON

2017 ◽  
Vol 2 (2) ◽  
pp. 144-154
Author(s):  
Muchammad Chasani
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Justice System ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Offense ◽  
Criminal Legislation ◽  
Corporate Criminal Liability ◽  
Responsibility System

The regulation of corporate criminal liability in Indonesia's criminal justice system is basically a new and still debatable issue. It is said that because in the Criminal Code is not recognized and regulated explicitly about the corporation as a subject of criminal law. This is a natural thing since the WvS Criminal Code still adheres to the principle of "societas delinquere non potest" or "non-potest university delinquere", that is, a legal entity can not commit a crime. Thus, if in a society there is a criminal offense, then the criminal act is deemed to be done by the board of the corporation concerned. Regarding the corporate criminal responsibility system in Indonesia, in the corruption law Article 20 paragraph (1), if the corporation committed a criminal act of corruption, then those responsible for the criminal act shall be the corporation only, the management only, or the corporation and its management. Thus, it can be said that the regulation of corporate criminal liability in the legal system in Indonesia is expressly only regulated in special criminal legislation, because the Criminal Code of WvS still adheres to the principle of "societas delinquere nonpotest" so it is not possible to enforce corporate criminal liability in it.

Trial and Error—A Critique of the New German Draft Code for a Genuine Corporate Criminal Liability

2015 ◽  
Vol 16 (4) ◽  
pp. 871-886
Author(s):  
Markus Rübenstahl ◽  
Christian Brauns
Keyword(s):  
Due Process ◽  
Criminal Liability ◽  
Criminal Code ◽  
Federal State ◽  
Trial And Error ◽  
Criminal Offenses ◽  
Specific Proposal ◽  
Draft Bill ◽  
Corporate Criminal Liability ◽  
Over The Top

The following article aims to analyze the first German draft bill concerning a corporate criminal code. The draft bill, recently introduced by the federal state of Nordrhein-Westfalen, led to a transformation of a theoretical academic discussion towards a specific proposal on potential future legislation. Firstly, the article introduces underlying reasons for the draft based on deficiencies of the current legislation. Current regulations solely provide corporate administrative responsibility for criminal offenses committed by a corporation's management (involving huge fines). Subsequently, the article reviews the content of the draft, specifically the multiplicity of proposed criminal and other penalties. The authors intend to demonstrate that the draft is often too vague or—especially with regard to penalties—simply over the top. The applicable sanctions – which may be combined- would lead to a more draconic punishment than in any other comparable legal system. Furthermore, regarding the principles of due process and strict legality the proposed procedural rules of the draft are not satisfying. After all, the proposed procedural measures to safeguard the proceedings and the rules on representation and defense counsel are deficient.

scholarly journals CORRELATION BETWEEN THEORY OF CRIMINAL LIABILITY AND CRIMINAL PUNISHMENT TOWARD CORPORATION IN INDONESIA CRIMINAL JUSTICE PRACTICE

2017 ◽  
Vol 17 (1) ◽  
pp. 104
Author(s):  
Septa Chandra
Keyword(s):  
Criminal Justice ◽  
Criminal Liability ◽  
Court Decision ◽  
Criminal Prosecution ◽  
Criminal Punishment ◽  
Criminal Offense ◽  
Justice Practice ◽  
Corporate Criminal Liability

The question of the correlation between theory of criminal liability and criminal punishment on criminal acts committed corporation is important to investigate in order to provide justification for the criminal prosecution of corporations. How a mistake should be constructed from a corporation associated with the theory of corporate criminal liability. As a consequence of the improper condition on the corporate views of whether the corporation has made a criminal offense can be avoided as part of discretion in running the business. If these obligations are not met, the corporation can be condemned for committing crime. The practice of criminal justice to the determination of criminal liability for corporations is not fully in accordance with the theory of corporate criminal liability. In fact, the court decision does not yet reflect a consistent correlation between the theory of criminal liability and criminal punishment on criminal acts of the corporation.Keywords: criminal liability, corporate, criminal justice.

scholarly journals The Formulation Policy on Corporate Criminal Liability System For The 1950 - 2017 Period and Its Harmonization in The Renewal of National Criminal Law

2018 ◽  
Vol 5 (2) ◽  
pp. 133
Author(s):  
Dwidja Priyatno ◽  
Kristian Kristian
Keyword(s):  
Research Method ◽  
Criminal Liability ◽  
Secondary Data ◽  
Criminal Code ◽  
Analysis Method ◽  
Legal Development ◽  
The Subject ◽  
Corporate Criminal Liability ◽  
Interpretation Method ◽  
Oriented Approach

The Criminal Code (KUHP) which currently applies does not recognize corporations as the subject of criminal acts. Therefore, the formulation/legislation policy concerning corporate criminal liability system in Indonesia is only regulated in various specific criminal laws (lex specialis). This research discusses the formulation/legislation policy regarding the corporate criminal liability system in 124 special criminal legislations outside the Criminal Code (KUHP) from 1950-2017. This research used a normative juridical research method as well as interpretation method with a policy-oriented approach. Types and sources of data used were secondary data in the form of primary, secondary, and tertiary legal materials. The collected data were then analyzed based on qualitative analysis method. The results of the research showed that the corporate criminal liability system in legal politics in Indonesia (especially in the formulation/legislation policy) still experiences disorientation and disharmonious. Besides, the national law development should follow every development and/or change of society that is developing in the direction of modernization and globalization and should be able to accommodate all society�s needs in various fields. This legal development should be continuously carried out (as a dynamic and an endless process) by "improving (making things better)" and "changing the law to be better and modern".Kitab Undang-Undang Hukum Pidana (KUHP) yang saat ini berlaku tidak mengakui korporasi sebagai subjek tindak pidana.Oleh karenanya, kebijakan formulasi/legislasi mengenai sistem pertanggungjawaban pidana korporasi di Indonesia hanya diatur dalam berbagai peraturan perundang-undangan pidana yang bersifat khusus (lex specialis). Penelitian ini akan membahas mengenai kebijakan formulasi/legislasi mengenai sistem pertanggungjawaban pidana korporasi dalam 124 (seratus dua puluh empat) peraturan perundang-undangan pidana khusus di luar Kitab Undang-Undang Hukum Pidana (KUHP) dari tahun 1950-2017. Penelitian ini menggunakan metode penelitian yuridis normatif dan metode interpretasi dengan pendekatan yang berorientasi pada kebijakan (policy oriented approach). Jenis dan sumber data yang dipergunakan adalah data sekunder yang berupa bahan hukum primer, bahan hukum sekunder dan bahan hukum tertier. Data yang telah terkumpul akan dianalisis berdasarkan metode analisis secara kualitatif. Hasil penelitian menunjukan bahwa sistem pertanggungjawaban pidana korporasi dalam politik hukum di Indonesia (khususnya pada kebijakan formulasi/legislasi) masih mengalami disorientasi dan disharmoni. Selain itu, pembangunan hukum nasional harus mengikuti setiap perkembangan dan/atau perubahan masyarakat yang sedang berkembang ke arah modernisasi dan globalisasi serta mampu menampung semua kebutuhan masyarakat di berbagai bidang. Pembangunan hukum seperti ini harus terus-menerus dilakukan (sebagai proses yang dinamis dan proses yang tidak pernah berakhir) dengan cara �menyempurnakan (membuat sesuatu yang lebih baik)� dan �mengubah agar hukum menjadi lebih baik dan modern�.

scholarly journals Termination of a criminal case (criminal prosecution) as a result of voluntary compensation for damage caused by a crime in the russian criminal court legal proceedings

2021 ◽  
Vol 7 (3B) ◽  
pp. 645-651
Author(s):  
Artem Igorevich Neryakhin ◽  
Dmitriy Aleksandrovich Ivanov ◽  
Vasily Dzhonovich Potapov ◽  
Denis N. Stacyuk ◽  
Tatiana Ivanovna Bondar
Keyword(s):  
Russian Federation ◽  
Criminal Liability ◽  
Preliminary Investigation ◽  
Criminal Code ◽  
Criminal Court ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
The Russian Federation ◽  
Compensation For Damage

The authors study the controversial issues of termination of a criminal case (criminal prosecution) on the condition of voluntary compensation for the damage caused by the crime by the suspect (accused) during the preliminary investigation. The thesis is proved that in Russian criminal proceedings the procedure for voluntary compensation for damage caused by a crime is quite clearly regulated, and if the suspect (accused) voluntarily compensated for the property damage caused, then their actions will be evaluated within the current legal framework, when the fact of compensation for damage creates grounds for exemption from criminal liability and termination of the criminal case (criminal prosecution) in accordance with Articles 75, 76, 761, 762 of the Criminal Code of the Russian Federation, Articles 25, 251, 28, 281 of the Criminal Procedure Code of the Russian Federation.

scholarly journals LIABILITY OF LEGAL PERSONS FOR THE VIOLATION OF COMPETITION RULES: CRIMINAL PROSECUTION AND ALTERNATIVE METHODS OF CONFLICT REGULATION (COMPARATIVE EVALUATION)

2017 ◽  
pp. 8-12
Author(s):  
Ольга Семыкина ◽  
Olga Semykina
Keyword(s):  
Dispute Resolution ◽  
Criminal Law ◽  
Alternative Dispute Resolution ◽  
Comparative Evaluation ◽  
Criminal Liability ◽  
Alternative Methods ◽  
Criminal Prosecution ◽  
Competition Rules ◽  
Conflict Regulation ◽  
Corporate Criminal Liability

In the article there is an analysis of criminal and criminal prosecution mechanism of legal persons’ liability for the violation of competition rules in some post-Soviet countries (Azerbaijan, Georgia, Kyrgyzstan, Moldova, Estonia). With a glance to a comparative evaluation there are features of national approaches established to regulate criminal law and criminal procedural measures applicable to legal persons who have committed acts in the field contrary to honest practices in industrial or commercial matters covered by the criminal branch of law. Based on the latest trends in criminalization, the model of criminal liability of legal persons is identified that is known in the world’s practice. Among them there are marked identified model (on the example of Estonia and Kyrgyzstan) and extended identified (based on the legislative approaches of Azerbaijan, Georgia, Moldova) models of corporate criminal liability. There are accumulated findings about the specifics of criminal prosecution of legal persons who have committed socially dangerous acts in the sphere of competition, and the possibility of using alternative mechanisms for the settlement of criminal law disputes in the stage of criminal prosecution. The conclusion defined is about direct dependence of realization of alternative dispute resolution mechanisms on the approach of the legislator to the legal entity of the Institute of responsibility of legal persons in criminal law.

scholarly journals Improvement of the Procedure of Application of Compulsory Measures of Educational Impact

2019 ◽  
pp. 106-114
Author(s):  
K. A. Tabolina ◽  
Z. R. Dzheyranova
Keyword(s):  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Educational Impact ◽  
Specialized Knowledge ◽  
Criminal Procedure Law ◽  
The Russian Federation ◽  
The Right ◽  
A Minor

The article is devoted to the problem of improvement of the procedure of application of compulsory educational measures in criminal proceedings against minors. The lack of proper regulation of the procedure for the application of compulsory educational measures and the existing legislative gaps determine the need for amendments and additions to the criminal law and criminal procedure law. It is proposed to grant the right to resolve the issue of termination of criminal prosecution and initiation of a petition for the application of a coercive measure of educational impact before the court to the prosecutor dealing with the criminal case brought before him with conviction or indictment. In order to resolve the question of the possibility of rehabilitating a minor through the use of compulsory educational measures, it is necessary to study his psyche using the specialized knowledge, which presupposes an expert opinion in the case. Exemption from criminal liability of minors under the rules of Article 90 of the Criminal Code of the Russian Federation should be treated as the duty rather than the right of the law enforcement agent. Approaches to the solution of the problem connected with execution of compulsory measures of educational impact have been formulated.

scholarly journals Consequences of failure to pay a court fine

2020 ◽  
Vol 11 (3) ◽  
pp. 639-650
Author(s):  
Nina Yu. Skripchenko ◽  
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Prosecution ◽  
Judicial Practice ◽  
The Supreme Court ◽  
Legislative Regulation

The article discusses issues that arose during enforcement of the new grounds for exemption from criminal responsibility, enshrined in 2016, in connection with a court fine (Article 76.2 of the Criminal Code). Despite the criticism of its legislative regulation, demand for a new way of ceasing criminal prosecution began to appear in connection with the non-payment of a fine. Having determined the voluntary execution of a court fine, the legislator did not settle the issue of the further execution of the fine in cases where there are valid reasons for non-payment. After analyzing the existing proposals to solve this problem, the author confirms that the elimination of the gap would be facilitated by the legislative obligation of the bailiff to establish the circumstances by which the judicial penalty is not paid, as well as the addition of the list of decisions made by the bailiff to suspend enforcement proceeding. Analysis of judicial practice showed that Art. 76.2 of the Criminal Code began to be applied in cases where the court has justification for implementing less onerous grounds for the defendant to be exempt from criminal liability. Legislative duplication of the conditions under which criminal prosecution can be terminated for various reasons calls into question the wide alternative of the latter, as well as the embodiment of the idea of humanizing criminal law, which is the basis for securing a new ground for exemption from criminal liability. The article substantiates the proposal to supplement the Resolution of the Plenum of the Supreme Court dated June 27, 2013 with a provision allowing the release of a person from criminal responsibility with a judicial fine in cases where the court has no basis for suspending criminal prosecution for unconditional types of exemption from criminal liability. The author draws attention to the gap in the legislation, part 3 of Article 78 of the Criminal Code, which is related to the renewal of the statute of limitations for criminal liability when an individual avoids paying a court fine.

scholarly journals Legal bases of circulation of cold weapons in Ukraine.

2021 ◽  
Vol 3 (3) ◽  
pp. 197-202
Author(s):  
Dmytro Musaelyan ◽  
Yuliya Kuntsevych
Keyword(s):  
Public Relations ◽  
Police Officers ◽  
Criminal Liability ◽  
Legal Regulation ◽  
Criminal Code ◽  
Scientific Article ◽  
Criminal Prosecution ◽  
Normative Documents ◽  
Technical Parameters ◽  
Steel Research

The scientific article determines the current state of legal regulation of the circulation of cold steel in Ukraine and also analyzes the latest bills to regulate this issue. A study of the social climate and opinions of Ukrainian citizens on the free possession of cold steel is conducted. The study identified the concept of «cold steel» and its qualifications. The analysis of normative documents in which the classification of types of cold steel and methods of forensic research are considered is carried out. The main criteria the category of cold steel are defined. The articles summarize the lack of certain means of cold steel, as well as the methodology itself, which determines which weapon belongs to the category of cold steel, and this language presupposes the presence of certain technical parameters. This situation creates a huge space for abuse both by experts, which can distort the results of the examination and by unscrupulous sellers, which can lead to a false phenomenon of possession of completely legal weapons and as a consequence may lead to criminal prosecution of Ukrainian citizens for part 2 of Article 263 of the Criminal Code of Ukraine «Illegal handling of weapons, ammunition or explosives». To resolve this controversial issue, our own methodology and criteria for classifying certain means as «cold steel» as well as decriminalization of liability for carrying a cold weapon are proposed, because the Code of Administrative Offenses of Ukraine contains certain articles that already provide for liability for improper acquisition and storage of cold steel. Thus, today in Ukraine it is urgent to adopt a law on arms, which will clearly define such concepts as cold steel, research methods that will be simple and clear to anyone, whether he is a citizen of Ukraine or not, because many abuses by police officers who demand bribes in connection with this issue or take away items of historical or simply material value. There is no legal regulation of civil armaments in Ukraine, and therefore it cannot categorically raise the issue of criminal liability for committing certain actions in the absence of legal regulation of public relations in response to these issues. Criminological research has long and convincingly proven that punishment has never and nowhere been among the main deterrents to committing crimes. The existence of absurdly strict laws has never had a positive effect on the crime situation in the country.

scholarly journals THE ROLE OF GENERAL ATTORNEY IN ERADICATION OF CORRUPTION BY CORPORATION

2019 ◽  
Vol 4 (2) ◽  
pp. 152
Author(s):  
Satya Marta Ruhiyat ◽  
Ismansyah Ismansyah ◽  
Nani Mulyati
Keyword(s):  
Qualitative Methodology ◽  
Criminal Liability ◽  
Criminal Code ◽  
The Public ◽  
Law Enforcement Officials ◽  
The Subject ◽  
Legal Subjects ◽  
Corporate Criminal Liability ◽  
Corporate Liability

Considerable efforts have been made to fight corruption, however it continues to occur in Indonesia. In the present time, corruptions do not only carry out by individuals but also by corporations. However, the Criminal Code and Criminal Procedure Code do not recognize and regulate corporations as the subject of criminal acts, so that law enforcement officials, especially prosecutors, have difficulty in charging corporations. This paper tries to answer question about the role of prosecutors in the eradication of corruption by corporation based on The General Attorney Regulation Number: PER-028/A/JA/10/2014 on guidelines for prosecuting corporation. The research method employed is normative juridical method, where the data is analyzed with qualitative methodology. The General Attorney Regulation on Corporate Legal Subjects explains more apparent criteria for actions that can be attributed to the corporation. The regulation combines several theories of corporate criminal liability not only heavily rely on vicarious criminal liability theory. It also provides direction about the separation of corporate liability and director’s liability. With this guideline, the public prosecutors have clearer direction to be able to charge the corporation so that it can restore the state finances that have been harmed by the corruption act.

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