...lawteacher.net http://www.lawteacher.net/free-law-essays/2-2-essays/criminal-liability-essay.php Criminal Liability Essay "Criminal liability and the justifications for, and objectives of, punishment are based on the notion of individual blameworthiness" In light of the above statement, consider whether imposing criminal liability on corporations for manslaughter is ever justified. Introduction English law has yet to come to terms with the conceptually difficult task of attributing liability for manslaughter to a corporate entity. The essential problem is that a corporation is granted an independent status by a pragmatic legal fiction which affords an identity to entity which has no physical existence. Salomon v. Salomon & Co. [1897] is authority on this point. This is done in order to allow the corporation to assume responsibility and rights in its economic activities and this device has proved extremely useful in encouraging commercial risk taking and entrepreneurial activity. However, problems arise when it is necessary to consider the question of the criminal liability of the corporation, because one of the fundamental precepts of criminal law is that of personal criminal responsibility. The way in which criminal law attributes liability is by ascertaining a mens rea (a guilty mind) and an actus reus (a guilty act) on the part of the accused. It is difficult to accuse a company of possessing a guilty mind, because it has no personal mind or conscience, and it...
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...Criminal Liability of Corporation: An Indian Perspective Manjeet Kumar Sahu* Abstract Current Supreme Court’s decision have made the stand apparently clear in India that the Corporation can be prosecuted as a separate legal entity even in the offences where the punishment is imprisonment. This Paper explains the present status of India on Corporate Criminal Liability and how judicial decision is inconsistent with the legal provisions. It further provides the current situation about the corporate criminal liability in the International scenario. The apex court’s decision under various matters reflects the gravity of the concerned problem i.e being faced by the aggrieved parties. The Concept of “No soul to kick” has become obsolete and applicability of lifting the corporate veil has unveiled the sheath. The current research on this subject have been included and it is substantiated with the effect of recent Supreme Court’s judgement and also focused on the dilemmatic situation of the Court’s decision. Keywords: Corporation, Criminal Liability, Judicial Decision, Legal provision, International Scenario, Dilemmatic Situation. Introduction A company can only act through human beings and a human being who commits an offence on account of or for the benefit of a company will be responsible for that offence himself. The importance of incorporation is that it makes the company itself liable in certain circumstances, as well as the human beings. ---------Glanville Williams The...
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...How has the law on corporate manslaughter developed in English law? Is the current law satisfactory? How does the approach taken in English Law compare to that taken in United States? The purpose of this research essay is to explore and evaluate critically the development of the law on corporate manslaughter. This area of law involves the interplay and intersection of criminal law and corporate law which makes it a thought provoking area of study. The essay will track the development of the law as it developed in English common law to impose liability on companies for manslaughter and the difficulties associated with prosecuting large companies which gave the impetus for reform in this area. After a brief on the reform process, the essay will...
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...Case Analysis: Discharged Contracts Carmelisa King Kaplan University LS311: Business Law Professor Baum September 2nd, 2014 Introduction There is an old saying a person’s word is their bond. In business a person’s word can be used as a contractual agreement. However, this type of contract isn’t always the best way to do business. It is important to have a written contractual agreement that both parties can be held by so there can’t be any possibility of either parties breaching the contract. Now this case analysis will discuss the contractual agreement between two parties and if there are grounds for the contract to be discharged based on the outcome impossibility of performance. Facts Millie entered into a contractual agreement with Frank to sell him 10,000 bushels of corn from her farm. However, Millie had a bad season and experiences a bad drought that caused her to produce only 250 bushels of corn for Frank. Now Frank accepted the 250 bushels of corn from Mille but later decides to sue Millie for breaching her contract with him. Issue Is it possible for Mille to be released from her contract base on the outcome impossibility of performance? Otherwise can Frank sue her for breaching their contract even though her crop wasn’t able to produce a large harvest due to the drought? Can Millie defend successfully on the basis of outcome impossibility of performance? Explain. 1. Discuss the elements of impossibility of performance and the three situations where...
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...Financial Scandals and the Role of Private Enforcement: The Parmalat Case Law Working Paper N° 40/2005 May 2005 Guido Ferrarini University of Genoa, Centre for Law and Finance and ECGI Paolo Giudici Free University of Bozen and Centre for Law and Finance © Guido Ferrarini and Paolo Giudici 2005. All rights reserved. Short sections of text, not to exceed two paragraphs, may be quoted without explicit permission provided that full credit, including © notice, is given to the source. This paper can be downloaded without charge from: http://ssrn.com/abstract=730403 www.ecgi.org/wp ECGI Working Paper Series in Law Financial Scandals and the Role of Private Enforcement: The Parmalat Case Working Paper N° 40/2005 May 2005 Guido Ferrarini Paolo Giudici This Working Paper is based upon a draft prepared for the EU Corporate Law Making Conference (Cambridge, October 29-30, 2004) organized by Harvard Law School and the Swiss Federal Institute of Technology (ETH Zurich). The authors are grateful to Gerard Hertig, Mark Roe, Donald Langevoort, and other conference participants for helpful comments. Drafts of this paper were also presented at the Yale Law School Alumni Meeting on October 8-10, 2004; at a meeting of the Associazione Via Isonzo held in Milan on October 10, 2004; and at a seminar at the Institute of Law and Finance (ILF), University of Frankfurt, on January 18, 2005. The authors are grateful to Theodore Baums, Andreas Cahn, Carmine Di Noia, Jon Macey,...
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...Assessment objectives 1 The scheme of assessment 2 Syllabus content Paper 1: Part One: Section A – The Nature of Law 3 Section B – The Effect of Law on the Individual 3 Paper 1: Part Two: Section C – The Sources of Law 3 Section D – Law Enforcement and Administration 4 Paper 2: Section A – The Market: the transfer of goods or the rendering of 4 services for cash or on credit terms. Section B – The Workplace: the legal relationship between 4 employers and employees. Section C – The Family: the family relationship arising from 5 marriage or cohabitation. Section D – The Criminal Offender: the essential nature of criminal 5 liability and the study of particular crimes. Section E – The Individual; civil liberties and rights under private law. 5 General Marking Bands 6 Textbooks 8 Contact details 10 Advanced Level Law 9345 This subject may be taken at the May/June examination only. Introduction This syllabus provides a satisfying course for those who will end their study of Law at this stage, and lays a secure foundation for those who will continue their studies in this or related subjects. It enables candidates to develop a knowledge and understanding of legal rules and institutions and an appreciation of the function of law in society. It also encourages candidates to...
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...are still being felt even after the bankruptcy proceedings, collapse/fall and trials of one of the biggest and major corporate scandals in American history and time. 1. Describe how Enron could have been structured differently to avoid such activities. Enron having been obviously formulated as a business corporation (a legal entity that is separate and distinct from its owners), a privilege provided by the state legislature to corporations by virtue of its Articles of Incorporation, corporate by-laws and state and/or federal charter, under its guise and appearance as an artificial company. As stated by Shaw, W. (2010), “Corporations are legal entities, with legal rights and responsibilities similar but not identical to those enjoyed by individuals. Business corporations are; limited liability companies―that is their owners or stock-holders are liable for corporate debts only up to the extent of their investments.” (Enron failed to implement and enforce the structural guidelines associated with a corporation, Board of Directors in its undertakings and daily managerial operations. It further failed to adhere to comply with federal regulations with regard to the Securities and Exchange Commission. It could have been formed and structured as a limited liability company (LLC) or a general corporation or C corporation (whereby, ownership offers limited liability to all its...
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...Summary GlaxoSmithKline (GSK) is one of the main pharmaceutical and healthcare drug developer and manufacturer in the world. The product liability case with the British company, GSK includes the drugs Avandia, Paxil, Wellbutrin, and others (Thomas & Schmidt, 2012). The drug maker pleaded guilty and agreed to pay fines from the criminal charges in the case. GSK promoted its antidepressants for unapproved uses and failing to report safety data to the FDA on their diabetes drug. In addition, there are civil penalties within this case for improper marketing on six other drugs. The fines are the largest settlement within the pharmaceutical industry, totaling 3 billion (Thomas et al., 2012). There have not been any charges placed against personnel of GSK, at this time. However, GSK has agreed to withdraw bonuses from executives in their part of this illegal behavior. The claims in this case are improper practices during the 1990 to the mid 2000’s, came from former employees of GSK, which include the regional vice president and senior marketing manager (Thomas et al., 2012). The criminal and civil claims include the following: • Even though it was known the drug was linked to suicidal thoughts in teens, GSK promoted the use of Paxil to children. GSK misrepresented information on a clinical trial in a medical journal on the drug. • Wellbutrin was approved for depressive disorder; however, was promoted to use for off-label promotions of various products, “weight loss and...
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...Corporate environmental governance of TNCs in developing countries: case of Vedan Vietnam 1. Overview of corporate environmental governance * The term ‘corporate environmental governance’ (‘CEG’) implies ‘a range of internal and external hard and soft rules, such as laws, regulations, policies, practices and social understandings, which shape and constrain corporate behaviour.’ * Factors driving and shaping corporate environmental behaviour: * Internal factors: unique resources, business strategies, organisation structure, business philosophy, etc. * External factors: * Legal pressure from legal stakeholders such as regulators, legislators, etc. * Social pressure from social stakeholders such as the neighbours, environmental activist organizations, etc. * Economic pressure from economic stakeholders such as consumers, investors, business partners, etc. 2. Vedan case 3.1. Background information of Vedan * Name: Vedan Vietnam Enterprise Corporation Limited (Vedan Vietnam), a company wholly owned by Taiwanese investors. * Year of establishment: 1991 in accordance with Investment Certificate No. 171/GP issued by the State Committee of Copperation and Investment on 08/-3/1991. * Location: Phuoc Thai Commune, Long Thanh district, Dong Nai Province, Viet Nam. * Principal activities: production of monosodium glutamate (MSG), lysine, and modified starch. * Business philosophy: “Taking roots in Vietnam- Developing...
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...Forensic Accounting & Auditing: A New Paradigm INTRODUCTION Thanks to the popularity of some criminal dramas, the word "forensic" might cause you to think about the process of working a crime scene. These investigators track down criminals using DNA samples, fingerprints, bloodstains, photos and other clues. So at first, you may wonder how the word "forensic" could ever be joined with the word "accounting." It's not as if you've seen accountants working with the other investigators at a crime scene. However, it really depends on the type of crime. “Auditor should be watchdog and not be the bloodhound”. It’s a good quote that every auditor should know. This quote makes the definition of forensic accountants even simpler. The forensic accountant is the bloodhound of Book keeping. External auditors look at the numbers but the forensic auditors look beyond the numbers. Only Forensic just means "relating to the application of scientific knowledge to a legal problem" or "usable in a court of law." Most of the crimes, such as homicides, investigated on a show like "CSI" are known as "crimes against the person." Forensic accounting is simply a specialty field within the broader arena of accounting. The types of crimes forensic accountants investigate are classified as "crimes against property." They investigate crimes such as fraud and give expert testimony in court trials. They also perform work related to civil disputes. Forensic accountants are also known as fraud investigators...
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...injuring wildlife. The primary law, in the U.S., for companies conducting deepwater drilling is outlined in the Oil Pollution Act of 1990 (OPA). The OPA “establishes a framework that addresses the liability of responsible parties in connection with the discharge of oil into the navigable waters of the United States, adjoining shorelines, or the exclusive economic zone” (Nichols, 2010). The OPA limits certain liabilities of the responsible party when an incident occurs in the previous mentioned areas. The OPA is limited based on the type of vessel or facility involved in the incident and the quantity of oil displaced by a discharge. Part of the OPA includes the claims for certain damages and removal costs. Claims for an incident must be presented directly to the responsible party, where the responsible party must pay appropriate claim within 90 days. If the responsible party fails to pay the claim during this timeframe, then the claimant can submit a claim directly to the Oil Spill Liability Trust Fund or file a suit in court. The OPA was not the initial protection for U.S. waters; initially, there was the Clean Water Act (CWA). When the OPA was established in 1990, it replaced the liability limitations in section 311 of the CWA. The newly established Act increased the liability “for tank vessels larger than 3,000 gross tons to $1,200 per gross...
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...Assignment # 1- Law and Health Care Keisha Love Health Care Policy, Law and Ethics HSA515 Dr. Melody Princes-Kelley Thousand Oaks Campus January 23, 2012 1. Identify and explain the four elements of proof necessary for a plaintiff to prove a negligence case. A plaintiff suing for medical malpractice has the burden of proof to show the four elements necessary to prove negligence. The standard four-element account of negligence is duty of care, breach of duty, injury, and proximate cause. A person accused of malpractice can defend him or herself by showing that one of these elements is missing and/or by establishing an affirmative defense. “The existence of a duty of care exists because of the contractual relationship between the patient and the doctor, hospital, or other health care provider. When the physician-patient relationship is established, the physician has a duty to possess the medical knowledge required of a reasonably competent medical practitioner (health care provider) engaged in the same specialty. And possess the skills required of a reasonably competent health care practitioner engaged in the same specialty. Also exercise the care in the application of that knowledge and skill to be expected of a reasonably competent health care...
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... DeVry University Acct 429 TAX RESEARCH MEMORANDUM ASSIGNMENT 2 It appears as though a couple of your clients have encountered an unfortunate development in their financial situation. Cindy and Ralph Edmonds own TidyCo., Inc. TidyCo, in turn, owns and operates several coin Laundromats in and around Dubuque, Iowa. Over the last two years, the Edmonds made weekly deposits of the Laundromat receipts to corporate and personal bank accounts. However, it now also appears (unknown to you!) they also siphoned off a portion of the weekly collections and took them home rather than depositing them. These amounts, which appear to total about $200,000 were hidden in shoeboxes around the house and (surprise!) were not reported as income. The IRS found out about these amounts and has notified them that it intends to bring criminal tax evasion charges against them under Section 7201 of the Code. The IRS has made quite clear that it believes that the Edmonds’ actions constitute prima facie evidence that they intended to defraud the government and should therefore be liable under the statute. As their accountant, you know that TidyCo has a deficit in both its accumulated and current E&P accounts and that this deficit has existed over the entire period that the IRS contends the Edmonds illegally invaded income taxation. It also appears as though...
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...transformed into apparently legitimate money or other assets has been recognized as a criminal activity which causes serious social and economic damages. The traditional method of money laundering is through financial institutions. However, with the development of new science and technology the approaches of money laundering have become more and more diverse. This paper is discussing the legal and ethical issues which surround this topic, as well as, develop an analysis for the ethical concerns raised by the laundering of money. The writer will then provide explanations from at least three relevant areas of law that have been discussed throughout the course and assess each area as it applies to money laundering. Finally, the write will provide recommendations on this situation to reduce liability exposure and improve the ethical climate or the overall ethics of money laundering. Is money laundering a real problem in the world today? I. Introductions There are many ethical issues that can arise in the course of operating a small business. A comprehensive understanding of the different types of ethical issues will help you to identify and handle this situation’s responsibility to maintain core business values. Let’s look at this scenario for example, money laundering. This paper is discussing the legal and ethical issues which surround this topic, as well as, develop an analysis for the ethical concerns raised by the laundering of money. The writer will then provide...
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...Sarbanes-Oxley Act: Cost Benefit Analysis The Sarbanes Oxley Act was signed into law by President Bush in 2002. This Act was in direct response to the accounting scandals of the early 2000s. A time that I remember very well, because I’d just graduated from college into the accounting industry, and it was in a total uproar. The Sarbanes Oxley Act (SOX) ordered a number of reforms to enhance corporate responsibility, financial disclosure, and to fight corporate and accounting fraud. This regulation also put financial as well as criminal pressure on the perpetrators, including the auditors. The Sarbanes Oxley Act (SOX) was named after two of its main architects, Senator Paul Sarbanes and Representative Michael Oxley. The SOX Act is composed of eleven titles. They are: Public Company Accounting Oversight Board, Auditor Independence, Corporate Responsibility, Enhanced Financial Disclosures, Analysis Conflicts of Interest, Commission Resources and Authority, Studies and Reports, Corporate and Criminal Fraud Accountability, White Collar Crime Penalty Enhancement, Corporate Tax Returns, and Corporate Fraud Accountability. This Act requires that top management assume responsibility for the financial records that are put out by the corporation. The have to sign off on the information before it is released. This is covered in Section 302. They are certifying that the report does not contain material untrue statements and that the statements provide a fair picture of the financial...
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