scholarly journals COMPLIANCE Y REGÍMENES SANCIONATORIOS DE LAS PERSONAS JURÍDICAS: ALGUNAS CONSIDERACIONES ECONÓMICAS

2019 ◽  
pp. 21-38
Author(s):  
DIEGO HERNÁN GOLDMAN
Keyword(s):  
Economic Activity ◽  
White Collar Crime ◽  
White Collar ◽  
Spanish American ◽  
Goods And Services ◽  
Compliance Programs ◽  
Legal Literature ◽  
Toma De Decisiones ◽  
Decision Making Processes ◽  
Legal Entities

La problemática de la responsabilidad penal o administrativa de las personas jurídicas y el estudio de los programas de compliance penal son cuestiones de creciente interés en la literatura jurídica hispanoamericana. El análisis de estos tópicos, sin embargo, es frecuentemente abordado desde una perspectiva dogmática que deja de lado el análisis de las implicancias materiales de estas herramientas jurídicas. En el presente trabajo, abordaremos el estudio de la responsabilidad de las personas jurídicas y del compliance penal atendiendo, particularmente, a sus efectos en aspectos tales como la disuasión de la criminalidad económica, los procesos de toma de decisiones en las empresas, el nivel de actividad económica y el funcionamiento de los mercados de bienes y servicios. Para ello, recurriremos a las herramientas brindadas por disciplinas como el análisis económico del derecho y la teoría de juegos. The problem of criminal or administrative liability from legal entities and the study of criminal compliance programs are issues of growing interest about the Spanish-American legal literature. The analysis of these topics, however, is frequently approached from a dogmatic perspective that neglects the analysis of the material implications from these legal tools. In this paper, we will address the study of the liability of legal entities and criminal compliance, having particular attention to their effects in aspects such as the deterrence of white collar crime, decision-making processes in companies, the level of economic activity and the functioning of the markets for goods and services. For this we will appeal to the tools provided by disciplines such as the law & economics and game theory.

Legal and Political Reponses to White-Collar Crime

2017 ◽  
Author(s):  
Tomomi Kawasaki
Keyword(s):  
White Collar Crime ◽  
Strict Liability ◽  
White Collar ◽  
Sentencing Guidelines ◽  
Sarbanes Oxley ◽  
Compliance Programs ◽  
Willful Blindness ◽  
New Policies ◽  
The Individual ◽  
Corporate Wrongdoing

American responses to white-collar crime, especially corporate wrongdoing, passed a turning point in 1991 with the enactment of the U.S. Sentencing Guidelines for Organizations, which adopted a “carrot and stick” approach to sentencing corporate offenders, including big incentives for companies introducing compliance programs. In the 2000s, this approach was enhanced by the enactment of the Sarbanes–Oxley Act of 2002 and the Thompson memo of 2003. In addition to the effects of the Thompson memo, federal prosecutors, learning from the fate of Arthur Andersen, came increasingly to rely on deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) after 2005. However, the Yates memo issued in September 2015 may change Department of Justice policy on corporate wrongdoing dramatically, particularly regarding investigation and prosecution of individuals. In thinking about and conceptualizing legal and political responses to white-collar crime, two main actors are meaningful: the corporation and the individual. Today, a corporation is criminally liable under the respondeat superior doctrine in federal criminal law, and corporate offenders are sentenced under the Organizational Sentencing Guidelines, which provide for fines, restitution, and probation as possible criminal penalties. In recent years, around 150–200 organizations have been sentenced under the Sentencing Guidelines annually. An individual white-collar criminal may be personally liable for their unlawful acts even if the corporation itself is convicted too. Individuals may be convicted absent any showing of mens rea in rare cases (strict liability crime and “willful blindness”). In the last decade, more than 8,000 individuals were prosecuted and convicted, for around a 90% conviction rate. One effect of the Yates memo may be to shift the main target of legal and political response to white-collar crime from the corporation to the individual. New policies under the Yates memo also come with new problems, for instance, that companies may lose incentive to introduce a compliance program or may look for scapegoats to escape prosecution themselves.

Finance Crime

2018 ◽  
Author(s):  
Arjan Reurink
Keyword(s):  
Financial Market ◽  
Global Financial Crisis ◽  
White Collar Crime ◽  
Market Price ◽  
White Collar ◽  
Financial Flows ◽  
Goods And Services ◽  
Market Practices ◽  
The Global Financial Crisis ◽  
Analytical Approaches

Finance crime, that is, white-collar crime that occurs in the markets for financial goods and services, appears to be pervasive in 21st-century capitalism. Since the outbreak of the global financial crisis of 2007–2008, virtually all established financial institutions have been implicated in finance crime scandals, ranging from the mis-selling of financial products to money laundering and from insider dealing to the rigging of financial benchmarks. The financial stakes involved in such scandals are often significant, and at times have the potential to destabilize entire economies. This makes the phenomenon of finance crime a highly relevant topic for white-collar crime researchers. A major challenge, however, for those studying the phenomenon of finance crime is to engage with the complex mechanics of finance crime schemes. These often involve esoteric financial instruments and are embedded in arcane market practices, making them seem impenetrable for those unfamiliar with the intricacies of financial market practices. A helpful way to make the empirical universe of finance crimes intelligible is to construct a typology. This can be meaningfully done by distinguishing finance crimes by the different rationales that underlie the laws and regulations they violate. Doing so renders five main types of finance crime. These are (i) financial fraud, (ii) misuse of informational advantages, (iii) financial mis-selling, (iv) market price and benchmark manipulation, and (v) the facilitation of illicit financial flows. White-collar crime scholars have taken various theoretical and analytical approaches to the study of finance crime. Some scholars have studied finance crimes in the light of their macro-institutional contexts. Such approaches are based on the premise that actors find meaning—motivations and rationalizations—and opportunities for their actions in the cultural and institutional environments in which they are situated and that such environments can be criminogenic in the sense that they structurally facilitate or even promote illegal behaviors. Others have studied the organizational dimensions of finance crime, looking at both the social networks through which finance crimes are perpetrated as well as the ways in which these networks are embedded in broader organizational and industry structures. Still others have studied the costs, consequences, and victims of finance crimes. Finally, some white-collar crime scholars have studied the ways in which societies create legal regimes that prohibit certain financial market practices as well as how these prohibitions are subsequently enforced by regulatory agencies, public prosecutors, and the courts.

scholarly journals Profiling white-collar crime: evidence from German-speaking countries

2008 ◽  
Vol 5 (4) ◽  
pp. 149-161 ◽  
Author(s):  
Roland Füss ◽  
Achim Hecker
Keyword(s):  
Money Laundering ◽  
Economic Activity ◽  
White Collar Crime ◽  
White Collar ◽  
Effective Strategies ◽  
Situational Contexts ◽  
German Speaking ◽  
Great Relevance

White-collar crime is a notable phenomenon attending economic activity. But although both prominent individual cases and more systematic statistics on claims indicate a considerable and pressing problem, rather little is known about particular types of offenses, patterns of response, situational contexts, or offender profiles. Nor is much known about which instruments effectively prevent and fight white-collar crime. Utilizing an extensive dataset of 329 organizations and over 400 case descriptions from Germany, Austria and Switzerland, this analysis offers a first detailed inquiry into the relevance and characteristics as well as prevention and redress of five basic kinds of white-collar crime: corruption, fraud, theft, anti-competition, and money laundering. In addition to an explication of overarching commonalities and specific differences, we strive to show that these five types can furthermore be reorganized into two differing classes that are each internally rather homogenous. This finding is of great relevance and importance to effective strategies for preventing and countering white-collar crime

White-Collar Crime and Criminal Careers

2001 ◽  
Author(s):  
David Weisburd ◽  
Elin Waring ◽  
Ellen F. Chayet
Keyword(s):  
White Collar Crime ◽  
White Collar ◽  
Criminal Careers

Insider Trading: A White-Collar Crime and its Impact on Share Market

Think India ◽  
2014 ◽  
Vol 17 (3) ◽  
pp. 22-24
Author(s):  
Sreekumar Ray
Keyword(s):  
Stock Market ◽  
Insider Trading ◽  
White Collar Crime ◽  
White Collar ◽  
Adverse Impact ◽  
High Ranking ◽  
Internal Information ◽  
Indian Stock Market ◽  
The Impact

Since inception, the growth of the Indian stock market has been constrained through unethical, illegal and self-actualized activities of swanky persons involved in different capacities in the market. The stock market was trying to retrieve itself from the devastating effect of Harshad Mehta share market scam, when within a gap of ten years it was once again pushed into the darkness of the dungeon by another demon-child of the country- Ketan Parekh. Corporations have been looted by the insider traders, diversifying internal information to an external in lieu of cash. Investigations in the majority cases have proved the involvement of the high ranking officers of the companies in the crime, sophistically referred to as white-collar crime. It has an adverse impact on the growth and sustainability of the share market. Under the light of the above issue, this paper endeavors to study the impact of such crime on the share market. It focuses on the mechanism behind the insider-trading, its impact on the share market and the regulators supervision on the issue. Finally, suggestions have been provided which will contribute towards the dream of every Indian-a fraud-free share market focusing towards the overall development of the country.

scholarly journals Mapping ‘wild zones’ of globalisation: on private actors and the rule of law

2021 ◽  
Vol 17 (1) ◽  
pp. 107-113
Author(s):  
Chantal Mak
Keyword(s):  
Global Economy ◽  
Large Scale ◽  
Legal Framework ◽  
International Investments ◽  
Goods And Services ◽  
Decision Making Processes ◽  
Private Corporations ◽  
Comprehensive Framework ◽  
Private Actors ◽  
The Impact

While private corporations have become increasingly influential in the global economy, a comprehensive legal framework for their activities is missing. Although international and regional legal instruments may govern some aspects of, for instance, international investments and the supply of goods and services, there is no overarching structure for assessing the impact of large-scale private projects. In the absence of such a comprehensive framework, specific rules of private law allow profit-seeking companies to expand their activities on an economic basis, mostly without having to heed social concerns (Pistor, 2019). This is particularly problematic insofar as multinational companies have obtained power to set the rules for their engagement with states, organisations and individuals, for instance in the form of transnational investment contracts. Given the fragmented nature of the legal sphere in which such contracts are elaborated and performed, those who face the harmful consequences of such investments may not be able to participate in decision-making processes. The contracts remain in ‘wild zones’ of globalisation (Fraser, 2014, p. 150), where powerful private companies rule.

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