CORPORATE LIABILITY FORMULATION POLICY ACCORDING TO ARTICLE 101 OF LAW NUMBER 31 OF 2004 JUNCTO LAW NUMBER 45 OF 2009 CONCERNING FISHERIES IN TERM OF CRIMINAL LEGAL REFORM IN INDONESIA

The corporation is the brain and source of funds for all illegal fishing activities and other crimes that occur along the chain of fishing business activities. According to Law Number 31 of 2004 in conjunction with Law Number 45 of 2009 concerning Fisheries, Article 101 states that: "In the case of a criminal acts as referred to in Article 84 paragraph (1), Article 85, Article 86, Article 87, Article 88, Article 89, Article 90, Article 91, Article 92, Article 93, Article 94, Article 95, and Article 96, the acts are committed by corporations; prosecution and criminal sanctions are imposed on their management and the fine is added by 1/3 (one third) of the sentence imposed." It is necessary to renew the Fisheries Law in order to provide an overview in determining the Corporate Liability Formulation Policy according to Article 101 of Law Number 31 of 2004 in conjunction with Law Number 45 of 2009 concerning Fisheries in the context of Criminal Law Reform in Indonesia. The type of this research was normative by using primary, secondary and tertiary sources of legal materials. From the results of research and discussion, it was revealed that Corporate Liability according to Article 101 of Law Number 31 of 2004 in conjunction with Law Number 45 of 2009 concerning Fisheries in Indonesia currently does not explain things about the meaning of the word "management", which parties in the management structure of a corporation that can be held accountable, or to what extent the authority possessed by parties in the management structure of a corporation can be subject to criminal responsibility. Therefore, the Corporate Liability Formulation Policy according to Article 101 of Law Number 31 of 2004 in conjunction with Law Number 45 of 2009 concerning Fisheries in the context of Criminal Law Reform in the future should be changed, this is important considering the formulation stage is the most strategic stage in the efforts to prevent and to control crime by including / expanding criminal liability, not only for the management but also for the corporation and its management.

Business Entities' Liability for 'Associated Persons' Corruption: Key Reflections

Section 17A of the Malaysian Anti -Corruption Commission Act 2009 imposes liability on business entities and their management if persons associated with them offer a bribe for their benefit. It provides a new regulatory capture to the meaning ‘Associated Person’ and corporate liability. This doctrinal research highlights the associated person legal framework that business entities should take cognisance of and incorporate in business operations. A comparative approach is undertaken to investigate how other jurisdictions deal with the issue. The study’s findings are significant to Malaysia’s business entities in curbing the associated person’s corruption acts. Keywords: corporate liability; associated person; corporate corruption; risk assessment eISSN: 2398-4287© 2021. The Authors. Published for AMER ABRA cE-Bs by e-International Publishing House, Ltd., UK. This is an open access article under the CC BYNC-ND license (http://creativecommons.org/licenses/by-nc-nd/4.0/). Peer–review under responsibility of AMER (Association of Malaysian Environment-Behaviour Researchers), ABRA (Association of Behavioural Researchers on Asians/Africans/Arabians) and cE-Bs (Centre for Environment-Behaviour Studies), Faculty of Architecture, Planning & Surveying, Universiti Teknologi MARA, Malaysia. DOI: https://doi.org/10.21834/ebpj.v6i18.3091

When the company causes harm: Effective corporate sentencing in a justice system based on individual fault

<p>The imposition of corporate liability is problematic in terms of both conviction and sentencing. Once convicted, it is still difficult to effectively sanction a corporation, as the artificial nature of the entity means it cannot be imprisoned. This problem is illustrated by the Pike River disaster and the relevant corporation’s conviction for nine health and safety offences. In that case, the defendant was insolvent, so no effective financial penalty could be imposed. This paper will consider the range of sanctions that could be used to effectively punish a guilty corporate defendant. A starting point for corporate sentencing would be the imposition of a financial penalty (both reparation orders and fines). However, if the company is insolvent, this may be ineffective. There are several mechanisms which could be used to overcome the issue of insolvency, but the court should also consider various non-financial penalties and the imposition of sanctions against individuals. The court may be able to adequately punish a company if a variety of penalties is used.</p>

When the company causes harm: Effective corporate sentencing in a justice system based on individual fault

<p>The imposition of corporate liability is problematic in terms of both conviction and sentencing. Once convicted, it is still difficult to effectively sanction a corporation, as the artificial nature of the entity means it cannot be imprisoned. This problem is illustrated by the Pike River disaster and the relevant corporation’s conviction for nine health and safety offences. In that case, the defendant was insolvent, so no effective financial penalty could be imposed. This paper will consider the range of sanctions that could be used to effectively punish a guilty corporate defendant. A starting point for corporate sentencing would be the imposition of a financial penalty (both reparation orders and fines). However, if the company is insolvent, this may be ineffective. There are several mechanisms which could be used to overcome the issue of insolvency, but the court should also consider various non-financial penalties and the imposition of sanctions against individuals. The court may be able to adequately punish a company if a variety of penalties is used.</p>

“Occupational Health and Safety” Corporate Liability and the Regulation of Officers: New Zealand Reform

<p>This paper examines the concept of corporate liability in the context of occupational health and safety in New Zealand. In particular it looks at the new duty of officers proposed in the Health and Safety Reform Bill 2014. New Zealand’s occupational health and safety framework has experienced a regulatory breakdown, stemming from its incomplete implementation of the Robens Model for health and safety regulation. That breakdown involves many flaws and gaps, especially as far as corporate liability is concerned, while the modern world of work has created new challenges to health and safety regulation. This setting demands a new regulatory tool to create effective corporate liability and increase the compliance of companies’. This article examines the new world of work and the inherent clash between OHS regulation and the corporate world to reveal two main conclusions; the major barrier to company compliance is a lack of effective inducement; and there is a desperate need to create health and safety leaders within companies, in order to create a positive health and safety culture. These two conclusions promote the main proposition of this paper, that the proposed duty of officers will be instrumental in improving the state of workplace health and safety. This paper examines the duty, as drafted, to emphasise its potential and to highlight certain flaws which may limit that potential.</p>

“Occupational Health and Safety” Corporate Liability and the Regulation of Officers: New Zealand Reform

<p>This paper examines the concept of corporate liability in the context of occupational health and safety in New Zealand. In particular it looks at the new duty of officers proposed in the Health and Safety Reform Bill 2014. New Zealand’s occupational health and safety framework has experienced a regulatory breakdown, stemming from its incomplete implementation of the Robens Model for health and safety regulation. That breakdown involves many flaws and gaps, especially as far as corporate liability is concerned, while the modern world of work has created new challenges to health and safety regulation. This setting demands a new regulatory tool to create effective corporate liability and increase the compliance of companies’. This article examines the new world of work and the inherent clash between OHS regulation and the corporate world to reveal two main conclusions; the major barrier to company compliance is a lack of effective inducement; and there is a desperate need to create health and safety leaders within companies, in order to create a positive health and safety culture. These two conclusions promote the main proposition of this paper, that the proposed duty of officers will be instrumental in improving the state of workplace health and safety. This paper examines the duty, as drafted, to emphasise its potential and to highlight certain flaws which may limit that potential.</p>

Gaps in Corporate Liability

Fact-finding is a fundamental step in providing documentation that can be used in domestic and international proceedings. The United Nations establishes commissions of inquiry to investigate international law violations, often in contexts of armed conflict, under the mandate of the Human Rights Council or other more political organs of the UN. They vary in mandate, as well as in investigative and geographic scope. However, to this day, fact-finding mechanisms or inquiry commissions have only rarely conducted investigations into corporate crimes, even in cases where the UN has explicitly recognized the part played by economic actors in armed conflicts. Because corporations are not subjects of international law, they are presumed not to have any direct obligations under international law. Moreover, the mandates of fact-finding missions de facto exclude corporations from investigations because such mandates are always designed to investigate international law violations. By voluntarily dismissing any investigation of corporate crimes, the UN is significantly limiting prospects for corporate responsibility and impeding the process of transitional justice.

MEMAHAMI KONSEP DAN SUBJEK PERTANGGUNGJAWABAN PIDANA DALAM PASAL 39A UNDANG-UNDANG NOMOR 28 TAHUN 2007 TENTANG PERUBAHAN KETIGA UNDANG-UNDANG NOMOR 6 TAHUN 1983 TENTANG KUP

In various cases of tax criminal acts, the board of directors is often subject to criminal liability on the grounds of being a signatory to the Tax Return (and/or Tax Invoice) and as a corporate organ that is deemed responsible for all company policies, activities, and operations. In addition, some cases of Tax Criminal Investigation impose criminal responsibility on the board of directors based on evidence of signature in the Tax Return and consideration of the principle of vicarious liability, which is the expansion or representation of liability for compensation under Private Law. This study aims to analyze the criminal liability doctrine adopted by Article 39A of Law Number 28 of 2007 concerning the Third Amendment to Law Number 6 of 1983 concerning General Provisions and Tax Procedures (UU KUP) and whether corporations can be held criminally liable in the offense of that Article. The theory and concepts used are criminal liability and analysis of the elements of Article 39A of the UU KUP, the main doctrines of criminal liability, the definition of legal entities, corporate taxpayers, and corporate liability. The results of the study found that corporate taxpayers as corporations are the subject of criminal liability in Article 39A, in addition to individuals, and Article 39A adheres to the principle of no crime without guilt.

Pertanggungjawaban Pidana Korporasi terhadap Pemalsuan Data Ekspor Zinc Ash yang Dilakukan oleh PT Marakes Jaya Abadi di KPPBC Belawan

This article discusses the legal rules governing corporate liability in laws and regulations against falsification of zinc ash export data, and how the factors that cause zinc ash data falsification by corporations and how the criminal law policies against corporations falsify export data. The method used in this paper is a normative legal research method. Normative legal research is the study of legal materials, both primary legal materials and secondary legal materials. The factors causing the falsification of zinc ash data by corporations are as follows: The factors causing the falsification of customs documents, among others are: (a) Geographic, (b) Production market, (c) Society. Efforts to tackle the crime of falsifying export data by the Belawan Intermediate Customs and Excise Investigation and Customs Enforcement Team (KPPBC TMP) in Belawan have reflected both ways of countermeasures, namely the repressive penal route and the preventive non-penal route.

Corporate liability for modern slavery

Purpose The purpose of this paper is to provide an overview of evolving developments in international, regional and EU law including the UK and Turkish jurisdictions for the liability of corporate businesses for modern forms of exploitative labour practices described as the modern forms of slavery. Design/methodology/approach In the first part, this paper outlines international, regional and EU instruments, UK and Turkish jurisdictions in relation to modern forms of slavery. The second part reviews legal frameworks for corporate liability for modern forms of slavery. Findings Slavery, slavery-like practices or some other exploitative practices are prohibited by numerous international law instruments starting from 1904. Apart from old forms of defined exploitative practices, multiple relevant current exploitative practices, called contemporary or modern forms of slavery exist all over the world. Under various international or regional conventions signatory States have been held responsible for exploitative practices by the international or regional courts or supervisory bodies, yet businesses were largely overlooked as a participating partner in the global movement to eradicate modern forms of slavery. For many years, multi-national businesses have engaged with various voluntary international corporate social responsibility initiatives in response to demands to operate in a socially responsible manner. There is a growing global recognition of the role corporate businesses can and should play in tackling crime and exploitative practices. A number of initiatives at the international and EU level and the introduction of the California Transparency in Supply Chains Act, (2010 – effective from 2012), the UK Modern Slavery Act 2015, the French Act on Due Diligence of Corporations and Main Contractors 2017 (loi sur le devoir de vigilance), the Australian Commonwealth Modern Slavery Act 2018, the Dutch Child Labour Due Diligence Act 2019, (which is due to come into effect in mid-2022), reflect this recognition. Originality/value This paper argues that it is important for companies to use available tools, participate in joint initiatives and advocate for binding international and regional instruments and effective national legislation and action – all aimed at ending business involvement in modern forms of slavery.