Corporate criminal liability is increasingly used in different regions and countries in today’s world. However, the role of corporate criminal liability in dealing with crimes committed in a corporate context still needs to be explored. This article aims to assess the need for, and potential risks of, the use of corporate criminal liability from both a legal and an economic perspective. The article argues that corporate criminal liability can be supported by the legal theory of corporate liability and that it also matches the economic logic. Even so, in addition to individual liability, in particular the criminal liability of directors and officers, it is still needed as a complement to ensure additional deterrence. Considering some problematic cases in reality, this article argues that a careful design of the attribution of individual criminal liability is needed in order to avoid the potential risks of using criminal liability in the corporate context, such as chilling effects and overdeterrence. The risk of overdeterrence could potentially lead to the relocation of large corporations. Also, drawing on the experience of the European Environmental Crime Directive, this article suggests possible ways of applying corporate criminal liability and optimal sanctions in the context of corporate crime. This article adds to the literature on criminal liability of corporations by providing a law and economics approach. As there is increasing concern, especially among lawyers about criminal behaviour of corporations, we argue that the economic approach can help to determine the proper scope of the criminal liability of the corporation and its employees.

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Criminal Liability of the Corporation and Its Employees: Legal and Economic Analysis

  • Michael Faure,
  • Ying Xie

摘要

Corporate criminal liability is increasingly used in different regions and countries in today’s world. However, the role of corporate criminal liability in dealing with crimes committed in a corporate context still needs to be explored. This article aims to assess the need for, and potential risks of, the use of corporate criminal liability from both a legal and an economic perspective. The article argues that corporate criminal liability can be supported by the legal theory of corporate liability and that it also matches the economic logic. Even so, in addition to individual liability, in particular the criminal liability of directors and officers, it is still needed as a complement to ensure additional deterrence. Considering some problematic cases in reality, this article argues that a careful design of the attribution of individual criminal liability is needed in order to avoid the potential risks of using criminal liability in the corporate context, such as chilling effects and overdeterrence. The risk of overdeterrence could potentially lead to the relocation of large corporations. Also, drawing on the experience of the European Environmental Crime Directive, this article suggests possible ways of applying corporate criminal liability and optimal sanctions in the context of corporate crime. This article adds to the literature on criminal liability of corporations by providing a law and economics approach. As there is increasing concern, especially among lawyers about criminal behaviour of corporations, we argue that the economic approach can help to determine the proper scope of the criminal liability of the corporation and its employees.